Case T-304/02: Action brought on 7 October 2002 by NV Hoek Loos against the Commission of the European Communities
Date: 2002-12-07
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), equal treatment, fine, gas, gas industry, restrictive trade practice

7.12.2002

EN

Official Journal of the European Communities

C 305/25

Action brought on 4 October 2002 by Westfalen Gassen
Nederland B.V. against the Commission of the European
Communities

(Case T-303/02)

(2002/C 305/54)

(Language of the case: Dutch)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 4 October 2002 by Westfalen
Gassen Nederland B.V., established at Deventer (Netherlands),
represented by J.J.M. Essers, lawyer.

The applicant claims that the Court should:

(1) primarily, annul Articles 1 and 3 of the Commission’s
decision of 24 July 2002 in case COMP/E-3/36.700 —
Industrial and medical gases, imposing on the applicant a
fine of EUR 0.43 million for infringement of Article 81(1)
EC;

(2)

alternatively, annul Article 1 of that decision and substan-
tially reduce the fine imposed by Article 3 thereof;

(3) order the Commission to pay the costs.

Pleas in law and main arguments

Furthermore, according to the applicant, the Commission has
failed to take account of the fact that, by virtue of the attitude
adopted it at meetings of the Vereniging van Fabrikanten van
Industriële Gassen (Association of Manufacturers of Industrial
Gases), smaller undertakings were excluded from further
involvement
in the discussions concerning the concerted
practices at issue. The applicant’s attitude was not passive; on
the contrary, it actively opposed those practices. According to
the applicant, the attitude thus adopted by it in fact had an
effect which was beneficial to competition.

The applicant further claims that the Commission is mistaken
as to the duration of the infringement allegedly committed by
it.

Finally, the applicant claims that the fine imposed is contrary
to the principles of proportionality and equality. According to
the applicant, having regard to the turnover figure at the time
it has in relative terms suffered the
of the infringement,
heaviest penalty, and the Commission, when fixing the amount
of
factual
assumptions.

the fine, proceeded on the basis of incorrect

Action brought on 7 October 2002 by NV Hoek Loos
against the Commission of the European Communities

(Case T-304/02)

(2002/C 305/55)

(Language of the case: Dutch)

The applicant has been active on the Netherlands market since
It imports industrial gases from Germany from its
1989.
parent company, Westfalen AG, or purchases them from other
producers.

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 7 October 2002 by NV Hoek
Loos, established at Schiedam (Netherlands), represented by
J.J. Feenstra and B.F. van Harninxma thoe Slooten, lawyers.

By the contested decision, the Commission found that the
applicant had participated in concerted practices relating to
price increases, moratoria and minimum prices in respect of
the Netherlands market.

In support of its claim, the applicant states that the Com-
mission has produced no proof, or no sufficient proof, of any
infringement by it of Article 81(1) EC. Thus, the Commission
has not proved, or has not sufficiently proved,
that the
applicant took part in the concerted practices.

The applicant claims that the Court should:

(1) primarily, annul Article 3 of the contested decision, in so
far as it concerns the fine imposed on the applicant;

(2)

alternatively, in the exercise of its unfettered jurisdiction
and applying justice in an appropriate manner, substan-
tially reduce the fine imposed on the applicant;

(3) order the Commission to pay the costs.

C 305/26

EN

Official Journal of the European Communities

7.12.2002

Pleas in law and main arguments

The applicant claims that the Court should:

The applicant is contesting Article 3 of the Commission’s
decision of 24 July 2002 in case COMP/E-3/36.700 —
Industrial and medical gases, in so far as it imposes a fine on
the applicant for infringement of Article 81 EC. The applicant
is contesting only the fine imposed on it, and is not challenging
the facts established or the legal assessment thereof.

The applicant claims that the contested decision is contrary to
Article 15(2) of Regulation No 17 (1) and Article 253 EC. Fines
to be imposed are to be determined by reference to the
seriousness of the infringement and the duration thereof.
According to the applicant, that rule has been applied by the
Commission in an inequitable and unreasonable manner. The
applicant maintains that undertakings which committed the
same infringement over the same period should be required,
under the terms of the decision, to pay a much smaller fine.

Furthermore, according to the applicant, the Commission, in
choosing the addressees of the decision, the turnover attribu-
table to each of those addressees and the order to be applied
to the restriction of the fine to 10 % of turnover and the
leniency rule, adopted a decision which cannot be objectively
justified and which does not justify the considerable differences
in the amounts of the fines imposed.

The applicant also pleads infringement of the Community
principles of equality and proportionality and of the prohib-
ition precluding arbitrariness. According to the applicant,
undertakings involved in a similar measure have been treated
in an unequal way.

( 1) EEC Council: Regulation No 17: First Regulation implementing
Articles 85 and 86 of the Treaty (OJ, English Special Edition
1959-1962, p. 87).

— annul Decision R 719/2000-4 of the Fourth Board of

Appeal of the OHIM of 12 July 2002;

— order OHIM to pay the costs.

Pleas in law and main arguments

The Community trade
mark concerned:

Goods or service:

The bottle comprises a main sec-
tion with, at its base, a recess, in
the shape of a slightly truncated
cone with,
in its flat section, a
stylised star in relief In the lower
part of the main section, which is
nearly cylindrical from bottom to
top, there is an initial series of
wavy grooves and,
in the top
part, which is of slightly smaller
bobbin-shaped,
diameter
there are spiralling grooves which
form lozenges when seen through
the bottle The upper section,
which is the shape of a slightly
truncated cone, ends in a cylindri-
cal neck with a blue cap — Regis-
tration No 922179

and

(Class 32 of
Water
national classification).

the inter-

Decision of the Board of
Appeal:

Refusal of examiner to register the
mark.

Grounds of claim:

Infringement of Article 7(1)(b)
and (e) of Regulation EEC No 40/
94.

Action brought on 3 October 2002 by Nestlé Waters
France against Office for Harmonization in the Internal
Market (Trade, Marks and Designs) (OHIM)

(Case T-305/02)

(2002/C 305/56)

(Language of the case: French)

Action brought on 7 October 2002 by Altana Pharma AG
against the Office for Harmonisation in the Internal
Market (Trade, Marks and Designs)

(Case T-307/02)

(2002/C 305/57)

(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 Office for Harmonization in the Internal
Market (Trade, Marks and Designs) (OHIM) was brought before
the Court of First Instance of the European Communities on
3 October 2002 by Nestlé Waters France, whose registered
office is in Issy-les-Moulineaux (France), represented by Alain
Cléry.

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
7 October 2002 by Altana Pharma AG, Konstanz (Germany),
represented by H. Becker, lawyer. N.V. Organon, Oss (Nether-
lands), was an additional party to the proceedings before the
Board of Appeal.