Case T-273/02: Action brought on 6 September 2002 by Krüger 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: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), beverage, coffee, milk, prepared foodstuff, trade-mark law

C 274/34

EN

Official Journal of the European Communities

9.11.2002

The applicants claim that the Court should:

— annul Article 1 of Commission Decision C(2002) 2091
final of 11 June 2002 in Case COMP/36.571/D-1 —
Austrian Banks, in so far as it relates to the applicants;

— annul the first sentence of Article 2 of the decision in so

far as it relates to the applicants;

— annul Article 3 of the decision in so far as it relates to the
applicants or, in the alternative, reduce the fine imposed
on the applicants in Article 3;

— in the alternative to the first claim, annul the decision
allowing the FPÖ (Austrian Freedom Party) as a complain-
ant and the transmission of the statement of objections;

— order the defendant to pay the costs.

Pleas in law and main arguments

The proceeding conducted by the defendant was directed
against regular meetings of banks in Austria (‘Bankenrunden’).
By the contested decision the Commission found that the
applicants — together with six other Austrian banking insti-
tutions — had infringed Article 81 EC by participating in
agreements and concerted practices concerning prices, charges
and advertising measures, designed to restrict competition on
the Austrian banking market from 1 January 1995 until
24 June 1998. The Commission imposed fines on the banks
concerned.

The applicants contend that the contested decision is unlawful
first of all because the finding of the facts is partly incorrect,
partly incomplete and therefore defective. The decision thus
infringes essential procedural requirements within the meaning
of the second paragraph of Article 230 EC. In addition, the
decision displays numerous defects in its reasoning and
contradictions. This concerns the choice of the persons to
whom the decision was addressed, as a whole, and the question
why the applicants were chosen on the basis of the criterion
of the size of the institutions.

In addition, the requirement under Article 81(1) EC that trade
between States be affected is not met. The arrangements on
the Austrian banking market were not capable of affecting
trade between States, and no fault can be attributed to the
applicants with regard to that requirement since they could
assume, in particular on the basis of the legal position in
Austria at that time and the participation of State authorities,
that their conduct was lawful under European cartel law too.
In determining the gravity of the infringement, the decision
fails to have regard to the fact that no binding arrangements
in the sense of a price cartel were entered into, and not a single
attenuating circumstance was taken into account.

The applicants plead that a further procedural error is consti-
tuted by the decisions and measures of the Commission
allowing the FPÖ (Austrian Freedom Party) as a complainant
and transmitting the statement of objections to it.

Action brought on 6 September 2002 by Krüger GmbH
& Co KG against the Office for Harmonisation in the
Internal Market (Trade Marks and Designs)

(Case T-273/02)

(2002/C 274/60)

(Language of the case to be determined pursuant to Article 131(2)
of the Rules of Procedure — language in which the application was
submitted: 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
6 September 2002 by Krüger GmbH & Co KG, Bergisch
Gladbach (Germany), represented by S. v. Petersdorff-Campen,
lawyer. Calpis Co Ltd, Tokyo, Japan was an additional party to
the proceedings before the Board of Appeal.

The applicants further contend that the decision infringes the
principle of equal treatment since they were discriminated
against when the persons to whom the decision was to be
addressed were decided upon. They took part in the various
rounds of meetings far less frequently than other banks or not
at all, nor are they comparable with other banks as regards
size. The Commission also infringed the principle of due
process and the applicants’ rights of defence.

The applicant claims that the Court should:

— annul the decision of the First Board of Appeal of 25 June

2002, reference No R 484/2000-1;

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

9.11.2002

EN

Official Journal of the European Communities

C 274/35

Pleas in law and main arguments

The applicant claims that the Court should:

Applicant
munity trade mark:

for

Com-

Calpis Co, Ltd (formerly The Cal-
pis Food Industry Co, Ltd)

— annul the decision in the open competition COUNCIL/A/
393 to give her a mark less than the minimum required
for her oral test and not placing her on the reserve list;

Community trade mark Word mark ‘CALPICO’ for goods
in Classes 29, 30 and 32 —
applied for:
application No 225169

— order the defendant to pay the costs.

Owner of the opposing
trade mark or sign:

The applicant

Pleas in law and main arguments

Opposing trade mark or
sign right:

German word mark ‘CALYPSO’
for goods in Class 32

Decision of Opposition
Division:

Rejection of opposition

Decision of Board of
Appeal:

Dismissal of applicant’s appeal

Pleas in law:

— Likelihood

confusion
of
between trade marks within
of Article
the meaning
8(1)(b) of Regulation (EC)
No 40/94 (1);

— Infringement of the principle
of the right to a fair hearing.

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

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

Action brought on 9 September 2002 by Athanacia-
Nancy Pascall against the Council of the European Union

(Case T-277/02)

(2002/C 274/61)

(Language of the Case: French)

In support of her action, the applicant relies on a breach of the
obligation to state the reasons on which the decision was
based. The applicant argues that the defendant ought to have
informed her of the marks that she was given in respect of the
various criteria that the selection board was required to
consider.

In addition, the applicant relies on the breach of the legal
framework constituted by the notice of open competition
COUNCIL/A/393 and the breach of the principle of equal
treatment. The applicant argues that the selection board was
bound to assess her general and professional knowledge and
qualifications in an interview in Greek. That interview was
held in other languages.

Action brought on 16 September 2002 by Degussa AG
against the Commission of the European Communities

(Case T-279/02)

(2002/C 274/62)

(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 16 September 2002 by Degussa
AG, Düsseldorf
(Germany), represented by R. Bechthold,
M. Karl and W. Berg, with an address for service in Luxem-
bourg.

An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 9 September 2002 by Athanacia-Nancy
Pascall, domiciled in Brussels, represented by Albert Coolen,
Jean-Noël Louis and Etienne Marchal, lawyers, with an address
for service in Luxembourg.

The applicant claims that the Court should:

— declare the Commission Decision of 2 July 2002 (Case
C. 373519 — Methionine) void, in so far as it concerns
the applicant;