Case T-279/02: Action brought on 16 September 2002 by Degussa AG against the Commission of the European Communities
Date: 2002-11-09
Institutions: Court of First Instance
Subjects: action for annulment (EU), chemical industry, control of restrictive practices, fine, infringement of EU law, organic acid

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;

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