Case T-324/01: Action brought on 11 December 2001 by Axions S.A. and Christian Belce against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2002-03-16
Institutions: Court of First Instance
Subjects: European Union Intellectual Property Office, Switzerland, action for annulment (EU), confectionery, trade mark, trade-mark law

C 68/14

EN

Official Journal of the European Communities

16.3.2002

The applicant claims that the Court should:

— annul Article 1 of the contested decision in so far as it
considers — in the case of Roquette — that the infringe-
ment lasted from February 1987 to June 1995;

— annul Article 3 of the contested decision in so far as it
imposes a fine of 10,8 million euros on Roquette Frères;

— in the exercise of its unlimited jurisdiction, reduce the

amount of the fine imposed on Roquette Frères;

— order the Commission to pay the costs.

— assessed the role played by Roquette in the cartel
without taking account of part played by he appli-
cant in restraining its implementation;

— minimised the nevertheless decisive nature of the
information supplied by Roquette to prove the
existence of the cartel and to explain the way in
which it worked;

— violation of the principle ne bis in idem, inasmuch as the
Commission failed to take account of
that
Roquette had already been fined $ 2 500 000 by the US
authorities on account of a breach concerning the same
subject-matter as that giving rise to the contested decision.

the fact

Pleas in law and main arguments

By a decision adopted on 2 October 2001, the European Union
imposed on the applicant company a fine of 10,8 million euros
for having participated, together with other producers of
sodium gluconate, in an agreement and/or concerted practice
covering the entire European Economic Area whereby they
shared out sales quotas between them, fixed the price of the
product concerned and colluded as to the attribution of
contracts concluded with customers.

By the present action, the applicant is contesting solely the
level of the fine imposed. In support of its claims, it pleads:

— infringement of Article 15 of Regulation No 17 and
violation of the principles of equality and proportionality,
inasmuch as the Commission failed adequately to assess
either the seriousness or the duration of the breach. More
particularly, according to the applicant, the defendant
included, in the turnover figure used to calculate the basic
amount of the fine, the sales volumes relating to another
product (stock-solutions) which never formed the subject-
matter of the breach. In addition, the Commission fixed
the date of the breach as June 1995, whereas the leader
of the cartel in the Commission’s eyes itself confirmed
that Roquette had decided to cease providing statistics
from 1994 onwards and various items of evidence arising
from the Commission’s investigations and from the
cooperation provided by the various undertakings
showed that Roquette had left the cartel in 1994;

— misapplication by the Commission of its guidelines for
calculating fines, as regards mitigating factors, and of its
communication concerning the non-imposition of fines
or the reduction of the amount thereof in cartel cases. The
applicant asserts in that connection that the defendant:

Action brought on 11 December 2001 by Axions S.A.
and Christian Belce against the Office for Harmonisation
in the Internal Market (Trade Marks and Designs)

(Case T-324/01)

(2002/C 68/26)

(Language of the case: German)

An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on
11 December 2001 by Axions S.A., of Geneva (Switzerland),
and Christian Belce, of Veyrier (Switzerland), represented by
C. Eckhartt, lawyer.

The applicant claims that the Court should:

— annul the decision adopted on 26 September 2001 by
the Third Board of Appeal of the Office for Harmonisation
in the Internal Market (Trade Marks and Designs) in Case
No R 599/2001-3;

— order the defendant Office to pay the costs.

Pleas in law and main arguments

— assessed the supposed effects of the cartel without
taking account of the information and evidence
provided by the applicant, which show the limited
effect which the cartel had on the market for the
product in question;

The trade mark con-
cerned:

a three-dimensional mark rep-
resenting a cigar, brown in colour

Goods or services:

goods in Class 30 (chocolate,
chocolate goods, bakery wares
and confectionery)

16.3.2002

EN

Official Journal of the European Communities

C 68/15

Decision contested befo-
re the Board of Appeal:

refusal of
examiner

registration by the

vehicles to leasing companies as stock, and was party to
agreements restricting the grant of discounts in Belgium.

Decision of the Board of
Appeal:

rejection of the appeal

Grounds of claim:

— no obstacles to registration
under Article 7(1)(e) of Regu-
lation (EC) No 40/94 (1);

— sufficient

distinctiveness
under Article 7(1)(b) of
Regulation (EC) No 40/94.

(1) Council Regulation (EC) No 40/94 of 20.12.1993 on the Com-

munity trade mark (OJ 1994 L 11, p. 1).

Action brought on 20 December 2001 by DaimlerChrys-
ler AG against the Commission of the European Com-
munities

(Case T-352/01)

(2002/C 68/27)

(Language of the case: German)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 20 December 2001 by DaimlerCh-
rysler AG, Stuttgart (Germany), represented by R. Bechtold and
W. Bosch, lawyers.

The applicant claims that the Court should:

— annul the Commission’s decision of 10 October 2001

(COMP/36.246 — Mercedes-Benz);

— in the alternative, reduce the fine imposed in Article 3 of

that decision;

— order the Commission to pay the applicant’s costs.

Pleas in law and main arguments

By the contested decision, the Commission imposed a fine of
EUR 71 825 million on the applicant for three infringements
of Article 81(1) of the EC Treaty. The Commission found that
the applicant and its legal predecessors took measures to
restrict parallel trade, restricted the supply of passenger motor

The applicant claims that
the Mercedes-Benz agents are
integrated in the Mercedes-Benz distribution organisation and
that agreements with commercial agents and commission
agents are genuine agency agreements to which the prohibition
on restrictive practices set out in Article 81(1) EC does not
apply. The applicant further submits that everything of which
the Commission accuses Mercedes-Benz regarding the obstruc-
tion of exports from Germany fails to meet the conditions laid
down in Article 81(1) EC. Mercedes-Benz is entitled to lay
down rules for both its commercial agents and its dealers on
sales to non-resident persons. Irrespective of the foregoing, the
applicant claims that the documentary evidence does not
establish that Mercedes-Benz obstructed cross-border sales
to foreign consumers. Mercedes-Benz’s sole interest was in
restricting transactions with non-authorised resellers.

The applicant claims that its instruction to agents to require a
15 % advance payment from foreign customers was not a part
of any agreements in restraint of trade between Mercedes-Benz
and its agents. The purpose of that instruction was to reduce
Mercedes-Benz’s risk exposure and it concerned the conditions
applicable to contracts for new cars, which were merely
negotiated by the agent and in which he did not participate.
Irrespective of the foregoing, the applicant claims that the
requirement of deposits from foreign customers is materially
justified.

The applicant further claims that the restrictions on German
agents as regards the brokerage of sales of new cars to leasing
companies do not infringe Article 81(1) EC because they
constitute permissible instructions to commercial agents. Even
if there were an infringement of Article 81(1) EC, it would in
any case be exempted under Article 81(3) EC in conjunction
with Regulation No. 1475/95 (1).

Furthermore, the applicant submits that Mercedes-Benz did
not carry out, or participate in, any ‘sale-price fixing’
in
Belgium which can be imputed to the applicant. Finally, it
claims that the special status of commercial agents is in itself
enough to preclude the imposition of a fine on the basis of the
‘German’ facts, and that, in any case, it was entitled to assume,
on the basis of earlier statements by the Commission, that its
previous practice did not infringe Article 81(1) EC. In addition,
the applicant
the application of
Article 81(1) is not precluded on legal grounds, the fine is, in
any case, clearly excessive.

that even if

submits

(1) Commission Regulation (EC) No 1475/95 of 28 June 1995 on
the application of Article 85(3) of the Treaty to certain categories
of motor vehicle distribution and servicing agreements (OJ 1995
L 145 p. 25)