Case T-118/02: Action brought on 16 April 2002 by Arjo Wiggins Appleton Limited against the Commission of the European Communities
Date: 2002-07-13
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), control of restrictive practices, fine, pulp and paper industry, restriction on competition, tax system

C 169/34

EN

Official Journal of the European Communities

13.7.2002

Proprietor of the right to
the trade mark or sign
asserted by way of oppo-
sition in the opposition
proceedings:

Elf Atochem North America, Inc.
now called Atofina Chemicals Inc.

The applicant claims that the Court should:

— annul or, alternatively, substantially reduce the fine
imposed on the applicant pursuant
to Commission
Decision C(2001)4573 final corr. of 20 December 2001
relating to a proceeding pursuant to Article 81 of the EC
Treaty and Article 53 of the EEA Agreement (Case COMP/
E-1/36.212 — Carbonless paper);

— order the Commission to pay the applicant’s legal and
other costs and expenses in relation to this matter.

Trade mark or
sign
asserted by way of oppo-
sition in the opposition
proceedings:

The national and international
figurative marks ‘Biomet’ and the
national word mark ‘Biomet’ for
certain goods in classes 1 and 5

Decision of the Oppo-
sition Division:

Rejection of
Atofina Chemicals Inc.

the opposition of

Decision of the Board of
Appeal:

Partial annulment of the Oppo-
sition Division’s decision.

Pleas in law and main arguments

Grounds of claim:

Violation of Article 17(2) of Com-
mission
2868/
Regulation
95 (1)since a translation into the
language of the procedure of the
evidence submitted was not filed
in due time.

(1) Commission Regulation (EC) No 2868/95 of 13 December
1995 implementing Council Regulation (EC) No 40/94 on the
Community trade mark (OJ L 303 of 15.12.1995, p. 1).

Action brought on 16 April 2002 by Arjo Wiggins
Appleton Limited against the Commission of the Euro-
pean Communities

(Case T-118/02)

(2002/C 169/61)

(Language of the case: English)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 16 April 2002 by Arjo Wiggins
Appleton Limited, represented by Mr François Brunet, Mr John
Temple Lang and Mr Jacob Grierson of Cleary, Gottlieb, Steen
& Hamilton, Paris (France).

In the contested Decision, the Commission found that the
applicant and ten other manufacturers of carbonless paper had
infringed Article 81(1) of the EC Treaty and Article 53(1) of
the EEA Agreement by participating in a complex of agree-
ments and concerted practices by which they fixed price
increases, allocated sales quotas and fixed market shares and
set up machinery to monitor the implementation of the
restrictive agreements.

The applicant submits that the Commission erred in respect of
each of the stages of its calculation of the applicant’s fine:

— it imposed an amount for ‘gravity’ (EUR 70 million) that

was disproportionately high;

— it increased this amount by 100 % for ‘deterrence’ for no

good reason;

— it imposed a further increase of 50 % for ‘leadership’
which was entirely disproportionate to the role played by
the applicant; and

— it granted an insufficient reduction for cooperation.

In addition, the applicant alleges that the Commission failed
to take account of the economic difficulties of the carbonless
paper market as an attenuating circumstance to reduce the
level of the fine; it breached the applicant’s rights of defence;
and it made a series of mistakes of a kind that it ought not to
have made in a decision imposing a EUR 185 million fine.

The applicant submits that the combination of these errors
resulted in almost 60 % of the total of the fines handed down
being imposed on the applicant alone, which is clearly out of
proportion to the applicant’s market share.