Case T-281/02: Action brought on 18 September 2002 by Norma Lebensmittelfilialbetrieb GmbH & Co. KG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2002-11-09
Institutions: Court of First Instance
Subjects: European Union Intellectual Property Office, action for annulment (EU), coffee, meat, polishing and scouring preparations, theory of marketing, trade mark, trade-mark law

C 274/36

EN

Official Journal of the European Communities

9.11.2002

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

the Decision;

— order the Commission to pay the costs.

Finally, the Commission has disregarded the presumption of
innocence, as it gave information to the economic press about
the expected amount of the fine even before the decision was
taken and that information was even published. An unbiased
decision was thus no longer possible.

Pleas in law and main arguments

The applicant contests the Decision of the Commission by
which a fine of EUR 118 125 000 was imposed on the
applicant for breach of Article 81(1) EC. The Commission
claimed that the applicant and other undertakings concerned
— various producers of methionine — took part
in a
continuous agreement and/or concerted practice. According
to the Commission’s findings, the applicant took part in such
arrangements from February 1986 until February 1999.

The applicant submits that in setting the fine the Commission
did not correctly assess the duration of the infringement. The
Commission assumed that the breach lasted from 1986 until
1999. In so doing it disregarded the fact that the agreements
ended in 1988, and that a fresh decision to enter into
agreements was made only in 1992. The Commission has not
proved that there was a single continuous breach as it alleged.
Furthermore, the Commission made several errors in setting
the basic amount of the fine. In assessing the breach as a
‘particularly serious breach’ of Article 81(1) EC it incorrectly
assessed the findings required as to the specific effect on the
relevant market. This must be viewed as an error of assessment
and the Commission is thereby in breach of its own guidelines
on setting fines.

The applicant also submits that the Commission based the fine
imposed on Degussa AG on the size of the undertaking in
2001 and thereby disregarded the fact that, since the ending
of the anti-competitive agreements Degussa has been involved
in two mergers of undertakings. The Commission should have
based its decision on the fine solely on the turnover of the part
of the current undertaking which corresponds to the former
Degussa AG Frankfurt am Main. In that respect the Com-
mission infringed the principle of liability.

that

the Commission’s
The applicant submits, moreover,
method of setting the fine did not meet the constitutional
requirement of certainty. In the Commission’s use of Article 15
of Regulation No 17/62 the invalidity of
this basis for
authorisation is clear as it gives the Commission an unlimited
authority to impose fines, which is not consistent with the
principles concerning the certainty of legal consequences of
unlawful acts.

Action brought on 18 September 2002 by Norma Le-
bensmittelfilialbetrieb GmbH & Co. KG against the Office
for Harmonisation in the Internal Market (Trade Marks
and Designs)

(Case T-281/02)

(2002/C 274/63)

(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
18 September 2002 by Norma Lebensmittelfilialbetrieb GmbH
& Co KG, Nürnberg (Germany), represented by S. Rojahn and
St. Freytag, lawyers.

The applicant claims that the Court should:

— annul the decision of the Third Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade
Marks and Designs) of 3 July 2002 (1);

— order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark Word mark ‘Mehr für Ihr Geld’ —
applied for:

application No 1669167

Goods or services:

Goods and services of Classes 3,
29, 30 and 35 (inter alia, bleach-
ing preparations and other sub-
stances for laundry use, meat, cof-
fee and marketing)

Decision
before
Appeal:

contested
the Board of

Refusal of
examiner

registration by the

9.11.2002

EN

Official Journal of the European Communities

C 274/37

Decision of the Board of
Appeal:

Pleas in law:

Decision of the examiner set aside
in so far as it applies to services in
Class 35. Dismissal of the remain-
der of the appeal.

— Infringement

of Article
7(1)(c) of Regulation (EC)
No 40/94 (2);

— Infringement

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

( 1) Case R 239/2002-3.
( 2) Council Regulation (EC) No 40/94 of 20 December 1993 on the

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

Action brought on 11 September 2002 by Cementbouw
Handel & Industrie B.V. against the Commission of the
European Communities

(Case T-282/02)

(2002/C 274/64)

(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 11 September 2002 by
Cementbouw Handel & Industrie B.V., Amsterdam, Nether-
lands,
and
represented
O. W. Brouwer, Advocaat.

by W. Knibbeler, Advocaat

The applicant claims that the Court should:

— annul Article 1 of the contested Decision;

— annul Article 2 of the contested Decision;

— annul Article 3 of the contested Decision;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant contests Commission Decision C(2002) 2315,
of 26 June 2002.

The applicant is active in the building materials sector. In
1999, the applicant and Franz Haniel & Cie GmbH acquired
from Ruhrkohle AG its shares in certain factories which were
members of the ‘Coöperatieve verkoop en produktievereniging
van kalkzandsteenproducenten’ (CVK), a co-operative organ-
ization for Dutch calcium silicate producers. According to the
contested Decision, the applicant and Franz Haniel thereby
gained joint control of CVK. The Decision further states that
the second set of commitments offered by the applicant and
Franz Haniel are sufficient to ensure that the concentration
would be compatible with the common market.

In support of its application, the applicant submits that the
Commission has infringed Article 3 of Council Regulation
No 4064/89 (1). According to the applicant, the Commission
erred in concluding that the applicant and Franz Haniel have
joint control of CVK. The applicant furthermore claims that
the Commission did not provide sufficient evidence for this
conclusion and failed to give reasons for it, in breach of
Article 253 of the EC Treaty.

the Commission erred in concluding that

The applicant also submits that the Commission has infringed
Article 2 of Regulation No 4064/89. According to the
applicant,
the
transaction under which the shares in Ruhrkohle AG were
acquired by the applicant and Franz Haniel led to a dominant
position for CVK on the market for building materials for
load-bearing walls in the Netherlands. Nor,
the applicant
claims, did the Commission provide sufficient evidence in
support of this conclusion or provide a statement of its reasons
for it, in breach of Article 253 of the EC Treaty.

The applicant
finally claims that Article 3 and 8(2) of
Regulation 4064/89 were misapplied, and the principle of
proportionality was breached by the Commissions failure to
accept the first set of commitments submitted by the applicant
and Franz Haniel.

(1) Council Regulation (EEC) No 4064/89 of 21 December 1989 on
the control of concentrations between undertakings (OJ L 395,
p. 1) (republished in OJ 1990, L 257, p. 13).