Case T-128/02: Action brought on 17 April 2002 by Papeteries Mougeot against the Commission of the European Communities
Date: 2002-06-15
Institutions: Court of First Instance
Subjects: European Commission, European Economic Area, action for annulment (EU), criminal law, fraud, offence, paper

15.6.2002

EN

Official Journal of the European Communities

C 144/61

The applicant contests the fine imposed on it, and in particular
its amount. It submits that the Commission ascertained the
facts erroneously and assessed incorrectly the facts ascertained
by it, especially with respect to the applicant’s merely passive
participation in the cartel. The Commission further assessed
incorrectly the non-implementation or delayed implemen-
tation of the agreements. The same applies to the considerable
price falls and fluctuations during the period of the infringe-
ment and to the influence of manufacturing costs on prices.

With respect to the gravity of the infringement, the applicant
submits inter alia that the Commission failed to take appropri-
ately into account, besides the minor effects of the cartel, the
poor economic situation of the sector and the early termination
of the infringement. The Commission also failed to take into
account the purely passive role played by the applicant in the
cartel and its crucial importance for bringing the infringement
to an early end. It thereby infringed the principle of pro-
portionality and Article 15(2) of Regulation No 17 of the
Council.

The fine imposed on the applicant further discriminates against
it compared with much more active members of the cartel.

that

The applicant submits, moreover,
the Commission
infringed the principle of careful and impartial investigation of
the aspects of relevance for the assessment of the fine, since it
failed to follow up numerous indications made by the appli-
cant. Finally, the decision infringes the requirement to state
reasons under Article 253 EC.

The applicant claims that the Court should:

— annul Decision R 0466/2000-2 of the Second Board of

Appeal of the Office of 18 February 2002;

— order the Office to pay the costs.

Pleas in law and main arguments

Community trade mark
sought:

The figurative mark ‘ECA’ —
application No 1106442

Goods or services:

Goods and services in classes 9,
41 and 42

Decision
before
Appeal:

contested
the Board of

Examiner’s refusal to register

Decision of Board of
Appeal:

Dismissal of appeal

Pleas in law:

— Incorrect

application

of
Article 7(1)(h) of Regulation
(EC) No 40/94 (1) and Article
6 of the Paris Convention (2)
because the figurative mark
is not identical to the Euro-
pean emblem.

(1) Council Regulation (EC) No 40/94 of 20 december 1993 on the

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

(2) Paris Convention for the Protection of Industrial Property.

Action brought on 18 April 2002 by Concept-Anlagen u.
Geräte nach ‘GMP’ für Produktion u. Labor GmbH against
the Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

Action brought on 17 April 2002 by Papeteries Mougeot
against the Commission of the European Communities

(Case T-127/02)

(2002/C 144/118)

(Case T-128/02)

(2002/C 144/119)

(Language of the case: German)

(Language of the case: French)

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
18 April 2002 by Concept-Anlagen u. Geräte nach ‘GMP’ für
Produktion u. Labor GmbH, Heidelberg (Germany), represent-
ed by G.J. Hodapp, lawyer.

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 17 April 2002 by Papeteries
Mougeot, established in Laval-sur-Vologne France, represented
by Guy Barsi,
Julien Baumgartner and Jean-Paul Hordies,
lawyers, with an address for service in Luxembourg.

C 144/62

EN

Official Journal of the European Communities

15.6.2002

The applicant claims that the Court should:

explained the very difficult position in which it found itself to
the Commission and the crisis situation should have induced
the Commission to impose lower fines.

— annul the Commission’s decision of 20 December 2001
relating to a procedure under Article 81 of the EC Treaty
and Article 53 of the EEA Agreement (Case COM P/E-1/
36.212 — photocopying paper);

(1) OJ 1996 C 207, p. 4.

— substantially reduce the amount of the fine imposed by

the Commission;

— order the Commission to pay all the costs.

Pleas in law and main arguments

Action brought on 18 April 2002 by Distribuidora Vizcaı´-
na de Papeles Sociedad Limitada against the Commission
of the European Communities

By the contested decision, the Commission found that the
applicant and 10 other undertakings had infringed Article
81(1) of the EC Treaty and Article 53(1) of the EEA Agreement
by taking part in a number of agreements and concerted
practices in the photocopying paper sector whereby they
agreed on price increases, allocated sales quotas and fixed
market shares, and put in place a mechanism enabling them
to monitor implementation of these restrictive agreements.

The applicant argues that the Commission made a manifest
error of assessment in claiming that it participated in the cartel
from May 1992 to September 1995. The applicant accepts
that it participated from October 1993 to July 1995 only. The
Commission has not shown that the applicant participated in
the cartel before October 1993 and after July 1995. The
decision should therefore be annulled.

In the alternative, the applicant requests a reduction in the fine
imposed. It argues that given that it only was a party to the
infringement during the abovementioned period, the amount
of the fine should be reduced by 48 %.

Furthermore,
it claims that the fine is disproportionate in
relation to its liability for the infringement, and that the
Commission misapplied the Commission notice on the non-
imposition or reduction of fines in cartel cases (1).

(Case T-132/02)

(2002/C 144/120)

(Language of the case: Spanish)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 18 April 2002 by Distribuidora
Vizcaı´na de Papeles Sociedad Limitada established in Derio
(Vizcaya, Spain), represented by Eduardo Pérez Medrano and
Ignacio Delgado Gonza´lez.

The applicant claims that the Court should:

— annul Decision C(2001) 4573 final CORR of 20 Decem-
ber 2001 in Case COMP/E-1/36.212 — carbonless copy
paper, in so far as it imputes to the applicant, as well as
participation in collusive arrangements relating to the
Spanish market, membership of a cartel which covered
the whole of the common market and the EEA, and,
in the alternative, reduce the fine imposed by the
Commission;

— order the Commission to pay the costs.

The applicant’s participation should have resulted in the
Commission proposing a 75 % reduction in the fine.

Pleas in law and main arguments

Finally, the applicant argues that the Commission did not take
into account the defensive nature of the cartel. The applicant

This action is directed against the same Commission decision
as that which is challenged in Case T-109/02 Bolloré v
Commission (1).