Case T-126/02: Action brought on 18 April 2002 by Zanders Feinpapiere AG against 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

C 144/60

EN

Official Journal of the European Communities

15.6.2002

Action brought on 17 April 2002 by Papierfabrik August
Koehler AG against Commission of the European Com-
munities

(Case T-125/02)

(2002/C 144/116)

(Language of the case: German)

other cases in which the Commission took a crisis situation
into account as a mitigating circumstance. The Commission
further failed to take into account, and recognise by a reduction
of the fine, the applicant’s cooperation with the Commission
during the procedure.

Finally, the applicant submits that the Commission did not
make the entire documentation of the investigation available
to the applicant. The applicant’s right to a fair hearing was
thereby infringed.

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 Papierfabrik
August Koehler AG, of Oberkirch (Germany), represented by
I. Brinker, lawyer.

Action brought on 18 April 2002 by Zanders Feinpapiere
AG against Commission of the European Communities

The applicant claims that the Court should:

— Annul the Commission’s decision of 20 December 2001

in Case COMP/E-1/36.212 — Carbonless paper;

(Case T-126/02)

(2002/C 144/117)

— In the alternative, reduce the fine imposed by Article 3 of

the decision;

(Language of the case: German)

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

Pleas in law and main arguments

By the contested decision the Commission found that the
and ten other undertakings had infringed
applicant
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 carbonless paper sector, in connec-
tion with which they decided on concerted price increases,
allocated sales quotas, determined market shares and estab-
lished a system for supervision of the anti-competitive agree-
ments.

The applicant concedes that it took part in such a cartel, but
only from October 1993. It further submits that in determining
the fine the Commission did not take proper account of the
size of the undertakings concerned. In terms of economic
capability, the applicant was hit much harder by the fine
imposed than the other undertakings fined. The Commission
thereby infringed the principle of proportionality.

The applicant further submits that, although the applicant was
occasioned to take part in the cartel by threats, the Commission
refused to regard that as a mitigating circumstance. Moreover,
the Commission did not take note of the fact that the applicant
was occasioned to take part in the cartel as a result of a specific
crisis situation. Therein lay unequal treatment compared to

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 Zanders Feinpa-
piere AG, of Bergisch Gladbach (Germany), represented by
J. Burrichter and M. Wirtz, lawyers.

The applicant claims that the Court should:
— Annul Article 3 of the Commission decision of 20 Decem-
ber 2001 in Case COMP/E-1/36.212 — Carbonless paper,
in so far as it imposes a fine of EUR 29,76 million on the
applicant;

— In the alternative, reduce the fine imposed on the

applicant by Article 3 of the decision;

— Order the Commission to pay the costs.

Pleas in law and main arguments

By the contested decision the Commission found that the
applicant
and ten 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 carbonless paper sector, in connec-
tion with which they decided on concerted price increases,
allocated sales quotas, determined market shares and estab-
lished a system for supervision of the anti-competitive agree-
ments.

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.