ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 237/12

Action brought on 16 August 2006 — Lucite International and Lucite International UK v Commission

(Case T-216/06)

(2006/C 237/21)

Language of the case: English

Parties

Applicants: Lucite International Ltd (Hampshire, United Kingdom) and Lucite International UK Ltd (Lancashire, United Kingdom) (represented by: R. Thompson, QC, and S. Rose, Solicitor)

Defendant: Commission of the European Communities

Form of order sought

— Annulment of Article 2(d) of Decision COMP/F/38.645;

— the replacement of the fine imposed under Article 2(d) of Decision [COMP/F/38.645] by a fine of EUR 18,268,750 or such other lower amount as the Court may consider appropriate; and

— order the defendant to bear the costs of this application.

Pleas in law and main arguments

The applicants seek the partial annulment of the Commission's Decision C(2006) 2098 final of 31 May 2006 in Case COMP/F/38.645 — Methacrylates, by which the Commission found that the applicants had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area by participating in a methacrylates cartel which consisted of discussing prices, agreeing, implementing and monitoring price agreements either in form of price increases, or at least stabilisation of existing price levels, discussing the passing on of additional service costs to customers, exchange of commercially important and confidential market and/or company relevant information and participating in regular meetings and other contacts to facilitate the infringement.

In support of their application, the applicants submit that the Commission applied its guidelines on the method of setting fines incorrectly when calculating the fine imposed on the applicants.

First of all, the Commission failed to take account of the nature of the applicant's involvement and the extent of their role in undermining the cartel when setting the starting amount of the fine.

Secondly, the Commission did not give proper consideration to the attenuating circumstances applicable to the applicants.
EN Official Journal of the European Union C 20/22

Action brought on 5 December 2006 — Vermeer Infrastructuur v Commission

(Case T-353/06)

(2007/C 20/32)

Language of the case: Dutch

Parties

Claimant: Vermeer Infrastructuur BV (represented by: M.M. Slotboom, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— principally, annul Decision C(2006) 4090 final of the Commission of the European Communities of 13 September 2006 relating to a proceeding under Article 81 EC (Case No COMP/38.456 — Bitumen — NL); or

— in the alternative, annul Articles 1, 2(d) and 3 of the decision in so far as (i) those provisions find that Vermeer participated in the fixing of the gross price for the sale and purchase in the Netherlands of bitumen for use in road construction, and (ii) a fine and an injunction were imposed in that regard;

— in the further alternative, annul Article 2(d) of that decision in so far as that provision imposed a fine on Vermeer;

— in the yet further alternative, reduce the fine imposed on Vermeer by Article 2(d) of the decision; and

— order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The claimant is challenging the Commission's decision of 13 September 2006 relating to a proceeding under Article 81 EC (Case No COMP/38.456 — Bitumen — NL), by which a fine was imposed on the claimant for breach of Article 81 EC.

In support of its action the claimant alleges a breach of Article 81 EC by reason of the fact that the Commission failed to prove that the claimant had participated in the fixing of the gross prices for bitumen or that it had itself any interest whatever in such fixing. The Commission thereby wrongly concluded that the bitumen suppliers and the road construction companies had participated in one and the same breach of Article 81 EC.

The claimant submits further that the Commission has failed to demonstrate that the claimant participated in collusion between a group of bitumen suppliers and a group of major road construction companies for the purpose of fixing, on a regular basis, a smaller rebate on the gross price for other road construction companies.

Further, the claimant alleges, the Commission infringed Article 81 EC and the guidelines for the setting of fines in that it failed to prove (i) that the claimant had participated in a very serious breach of Article 81 EC and (ii) that the claimant's involvement in the alleged breach had lasted from 1 April 1994 to 15 April 2002. Consequently, in the view of the claimant, the Commission took an excessively long period into account for the purpose of calculating the fine imposed on it.

In conclusion, the claimant alleges a breach of Article 253 EC and an infringement of essential procedural requirements.
EN Official Journal of the European Union C 140/40

Action brought on 4 May 2007 — General Technic v Commission

(Case T-142/07)

(2007/C 140/66)

Language of the case: French

Parties

Applicant: General Technic Sàrl (Luxembourg, Grand Duchy of Luxembourg) (represented by: M. Nosbusch, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

— annul on the basis of Article 230 EC the decision adopted by the Commission on 21 February 2007 relating to a proceeding under Article 81 EC and Article 53 EEA in Case COMP/E-1/38.823 — Elevators and Escalators, in so far as it concerns GT;

— in the alternative, annul or reduce, on the basis of Article 229 EC, the fine imposed on it by that decision;

— order the Commission to pay all the costs.

Pleas in law and main arguments

By this action, the applicant is seeking the partial annulment of Commission decision C(2007)512 final of 21 February 2007 relating to a proceeding under Article 81 EC and Article 53 EEA (Case COMP/E-1/38.823 — PO/Elevators and Escalators), concerning a cartel on the market for the installation and maintenance of lifts and escalators in Belgium, Germany, Luxembourg and the Netherlands, and relating to the manipulation of calls for tenders, market-sharing, price-fixing, the award of projects and sales contracts, the installation, maintenance and modernisation of machinery and the exchange of information, in so far as it concerns the applicant. In the alternative, the applicant seeks the annulment or reduction of the fine imposed on it by the contested decision.

In support of its action, the applicant submits that the Commission was wrong to find it jointly and severally liable for payment of the fine imposed on its subsidiary, a member of the cartel. It claims that the Commission was mistaken about the nature and extent of its shareholding in the share capital of its subsidiary in so far as the applicant is a purely financial company which does not carry out any trade of its own and that its shareholding in the subsidiary is a minority shareholding which does not exceed what is necessary for the protection of its financial interests. The applicant maintains also that the Commission has not stated to the requisite legal standard its reasons for finding that the applicant was involved in the cartel in question, in contrast to the personal role played by its shareholder, in his capacity as managing associate of the subsidiary.
EN Official Journal of the European Union C 199/38

Action brought on 4 June 2007 — Czech Republic v Commission

(Case T-194/07)

(2007/C 199/74)

Language of the case: Czech

Parties

Applicant: Czech Republic (represented by: T. Boček, Agent)

Defendant: Commission of the European Communities

Form of order sought

— annul the contested decision;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant seeks annulment of Commission Decision C(2007) 1294 final version of 26 March 2007 concerning the national allocation plan for the allocation of greenhouse gas emission allowances notified by the Czech Republic in accordance with Directive 2003/87/EC of the European Parliament and of the Council. (1) According to the contested decision, certain aspects of the Czech Republic's national allocation plan do not comply with Annex III to Directive 2003/87/EC.

The applicant submits that the Commission has infringed Article 9(3) of Directive 2003/87/EC, as well as the principle of legal certainty and legitimate expectation, by failing to published the contested decision within the time limit laid down by Article 9(3) of Directive 2003/87/EC.

In addition, the applicant states that the Commission exceeded its power and thus infringed Article 9(3) in conjunction with Articles 9(1) and 11(2) of Directive 2003/87/EC in that, in the contested decision, it applied its own method for fixing the maximum quantity of allowances and on basis of that method in fact laid down, in binding form, the total quantity of allowances which the Czech Republic is entitled to allocate.

Even if the Commission were entitled to use its own method for establishing that the national allocation plan complies with the requirements of Directive 2003/87/EC, it infringed Article 9(3) of that directive in that (i) the method it used was neither transparent nor objective and (ii) the resulting quantity of emissions allowances does not comply with the criteria laid down in Annex III to Directive 2003/87/EC.

Finally, the applicant submits that the Commission infringed Article 9(3) of Directive 2003/87/EC by failing adequately to state reasons.

(1) Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive [96/61/EC] (OJ 2003 L 275, p. 32).
EN Official Journal of the European Union C 155/24

Action brought on 16 April 2007 — P.P.TV — Publicidade de Portugal e Televisão, SA v OHIM — Rentrak (PPT)

(Case T-118/07)

(2007/C 155/49)

Language in which the application was lodged: Portuguese

Parties

Applicant: P.P.TV — Publicidade de Portugal e Televisão, SA (Lisbon, Portugal), (represented by: I. de Carvalho Simões and J. Conceição Pimenta, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal of OHIM: RENTRAK Corp.

Form of order sought

— annulment of Decision No R. 1040/2005-1 of 7 February 2007 of the First Board of Appeal of the Office for Harmonisation in the Internal Market (‘the Office’) (related case: Decision No 2254/2005 of 28 June 2005 of the Opposition Division of the Office)

— an order that the Office should, in consequence, refuse to register Community trade mark No 1758382 in relation to all the services listed;

— an order that the intervener should pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: RENTRAK Corp.

Community trade mark concerned: Word mark PPT (Services for the distribution of video-cassettes on the basis of shared revenue or payment for use; rental of videos and DVDs; rental of video-recorders and DVD players; distribution of videotapes; on-line rental of videos, DVDs, video-recorders and DVD players by means of the world wide information net, Class 41)

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited in opposition: Portuguese national trade mark No 330 375, presenting the verbal element ‘PPTV’ (services relating to ‘Education; providing of training; entertainment; sporting and cultural activities’ within Class 41).

Decision of the Opposition Division: Upholding of the opposition and rejection of the application for registration of a Community trade mark

Decision of the Board of Appeal: Annulment of the Opposition Division's decision and rejection of the opposition

Pleas in law:

Similarity of services: the Board of Appeal's interpretation to the effect that the services relating to the trade mark at issue, being distribution services only, are not directed at the same consumers, so that they have no connection whatsoever with the services provided by the applicant, is too restrictive.

Graphic similarity and likelihood of confusion: The three first letters of each of the two distinctive signs are exactly the same. Neither of the trade marks has any immediate meaning for Portuguese consumers, so that they will be taken to be fanciful signs and therefore to be original.

The likelihood of confusion includes the risk of association.

Even if Portuguese consumers did succeed in distinguishing the marks, it is not inconceivable that they would ascribe to them the same origin or believe that there were commercial, economic or organisational relations between the proprietor undertakings, which might constitute unfair competition even if that were not the intention of the applicant for registration of the trade mark at issue.
—

that the Commission committed a number of manifest errors of assessment relating to: — the definition of three separate wholesale markets and not a single market for access to wholesale ADSL including both the local loop and national and regional access, or in the alternative, at least the latter two; — the presumption that the applicants were dominant both on the relevant wholesale broadband product markets and on the retail market; — the application of Article 82 EC in relation to its alleged abusive conduct. First, the Commission applies that article to the de facto refusal to contract when the wholesale products in question do not constitute ‘essential infrastructure’, thereby contradicting the case-law in Oscar Bronner. Secondly, even if Article 82 could be applied to the applicants' conduct, quod non, the decision disregards the requirements laid down in the case of Industrie des Poudres Sphériques according to which, in order to make a finding of illegal margin squeeze, it is necessary to show past evidence of both excessive pricing of the upstream product and predatory pricing of the final product; — the alleged abusive conduct and its impact on the market; first, because it incorrectly selects the wholesale inputs for comparison, and secondly, because it commits, inter alia, major errors of calculation and omissions both in the application of the ‘period-by-period’ test and the ‘discounted cash flow’ test. These errors, both individually and collectively, invalidate the methodology and calculations set out in the decision. The decision also fails to probe sufficiently the alleged negative impact of the conduct on competition; — the ultra vires acts of the Commission, which, in any event, infringe the principles of subsidiarity, proportionality, legal certainty, loyal cooperation and sound administration by intervening where the national telecommunications regulator had already acted, which was set up under European legislation and which acted in accordance with the powers and competences conferred on it by that legislation and under a set of rules based on the Community competition rules;
EN Official Journal of the European Union C 211/37

Action brought on 28 June 2007 — Spain v Commission

(Case T-227/07)

(2007/C 211/72)

Language of the proceedings: Spanish

Parties

Applicant: Kingdom of Spain (represented by: M. Muñoz Pérez)

Defendant: Commission of the European Communities

Forms of order sought

— declare void Commission Decision 2007/243/EC of 18 April 2007 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), in so far as it forms the subject-matter of the present action and,

— order the Commission to pay the costs.

Pleas in law and main arguments

The Kingdom of Spain disputes the contested decision in so far as it provides for a financial correction of the costs incurred in the context of production aid for products processed from tomatoes in the financial years 2003 and 2004, in the amount of EUR 4 090 316,46.

In support of its claims, the applicant alleges:

— infringement of Articles 2 and 3 of Regulation No 729/70 (1) and of Article 2 of Regulation No 1258/1999 (2) given the non-existence of the irregularities relied on by the Commission relating, in particular, to the checks of primary materials at the delivery points, that is to say, the absence of nightly checks by the inspectors of the Extremadura Autonomous Community, failure to retain proof of weighing, and ‘en masse’ signature of delivery notes;

— in the alternative, breach of the principle of proportionality, given that the Commission decided to impose a financial correction on the entire quantity of tomatoes delivered, even though the actual irregularity on which the correction is based would concern only those quantities delivered at night, which means that the corrections could have been applied only to those quantities.

(1) Regulation (EEC) No 729/70 of the Council of 21 April 1970 on the financing of the common agricultural policy (OJ English Special Edition 1970 (I), p. 218).

(2) Council Regulation (EC) No 1258/1999 of 17 May 1999 on the financing of the common agricultural policy (OJ L, 26.6.1999, 160, p. 103).
EN Official Journal of the European Union C 8/25

Action brought on 21 November 2007 — RedEnvelope v OHIM — Red Letter Days (redENVELOPE)

(Case T-415/07)

(2008/C 8/45)

Language of the case: English

Parties

Applicant: RedEnvelope Inc. (San Francisco, United States) (represented by: A. Poulter, Solicitor)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal: Red Letter Days Ltd (London, United Kingdom)

Form of order sought

— Annul the decision of the First Board of Appeal dated 14 September 2007, No R 1117/2005-1, in so far as the decision provided for the admission of new evidence in support of the grounds of opposition;

— order that the defendant pays the applicant's costs of this appeal.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘redENVELOPE’ for services in classes 35 and 42 — application No 1 601 327

Proprietor of the mark or sign cited in the opposition proceedings: Red Letter Days Ltd

Mark or sign cited: The registered and non-registered national word and figurative marks ‘RED LETTER’, ‘RED LETTER DAYS’ and ‘RED LETTER DAYS PLC’ for goods and services in classes 9, 14, 16, 18, 21, 22, 25, 26, 33, 36, 39, 41, 42, 43 and 44

Decision of the Opposition Division: Opposition partially upheld

Decision of the Board of Appeal: Annulment of the Opposition Division's decision and remittal of the case to the Opposition Division for further consideration in so far as it regards Article 8(4) of Council Regulation No 40/94

Pleas in law: Violation of Article 74(2) of Council Regulation No 40/94, as the Board of Appeal admitted new evidence, which will allow the Opposition Division to make a decision based on evidence, which was not available earlier in the proceedings and to which the applicant has not had an opportunity to respond before the Opposition Division.
EN Official Journal of the European Union C 315/41

Action brought on 4 October 2007 — FIFA v Commission

(Case T-385/07)

(2007/C 315/77)

Language of the case: English

Parties

Applicant: Fédération Internationale de Football Association (FIFA) (represented by: R. Denton, E. Batchelor and F. Young, Solicitors)

Defendant: Commission of the European Communities

Form of order sought

— The annulment of the decision, in particular Articles 1-2 thereof; and

— an order that the Commission pay its own costs and FIFA's costs in connection with these proceedings.

Pleas in law and main arguments

Under Article 3a of Council Directive 89/552/EEC (1) a Member State may draw up a list of sporting or other events that are considered to be events of ‘major importance to society’. The events on the list cannot be the subject of exclusive broadcasting rights which prevent a substantial proportion of the public in that Member State from watching the event via live coverage or deferred coverage on free television.

The applicant seeks the annulment of Commission Decision 2007/479/EC of 25 June 2007 (2) by which the Commission declared that the list drawn up by Belgium pursuant to Article 3a(1) of Council Directive 89/552/EEC was compatible with Community law.

In support of its application the applicant submits that the Belgian list restricts the freedom to provide services by preventing the applicant from licensing foreign broadcasters with live exclusive FIFA World Cup broadcasting rights in respect of the Belgian market and that the listing of all FIFA World Cup matches, regardless of popularity, is not justified, proportionate or necessary.

Furthermore, the applicant alleges that the Belgian list restricts freedom of establishment by preventing the applicant from licensing new entrants who wish to use premium sports broadcasting to establish themselves on the Belgian market.

Moreover, the applicant contends that the Belgian list infringes the applicant's property rights by depriving it of exclusivity in respect of its broadcasting rights, recognised according to the applicant by EC law to be the essence of intellectual property protection.

Finally, the applicant argues that contrary to Article 3a(1) of Council Directive 89/552/EEC the Belgian list was not drawn up in a clear and transparent manner.

(1) Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities (OJ 1989 L 298, p. 23).

(2) Commission Decision 2007/479/EC of 25 June 2007 on the compatibility with Community law of measures taken by Belgium pursuant to Article 3a(1) of Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 2007 L 180, p. 24).