Case T-398/02: Action brought on 30 December 2002 by Linea Gig S.r.l. (in liquidation) against the Commission of the European Communities
Date: 2003-02-22
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), automatic game, exclusive distribution agreement, fine, restriction on competition

22.2.2003

EN

Official Journal of the European Union

C 44/43

no scientific evidence that the processing of food waste,
as performed in the Federal Republic of Germany under
stricter conditions in recent years, presents a risk of
contamination. The risk is, on the contrary, reduced
because illegal disposal and use as feed is prevented and
food and kitchen waste are subject to treatment which
destroys pathogens to a scientifically proven degree.
There are adequate measures of control to ensure com-
pliance with those legal requirements and the constituents
of animal feed are traceable. The system used in the
Federal Republic of Germany for the collection and
treatment of food waste and its processing into feed thus
already meets the objectives of the regulation and there
was no need for any wider authorisation in Community
law. The possibility of extending the duration of dero-
gations should have been made dependent on scientific
evidence.

2.

3.

It is incompatible with the general principle of equality
for the inflexible time restriction placed on derogating
provisions to treat the various systems used in the
Member States for processing food waste, and in particu-
lar the processing into feed of food waste adequately
treated or not, as being the same. There is no justification
for that in the principle governing the regulation, which
is the prevention of contamination. Scientific evidence
showed clearly that the way in which food waste was
treated in the Federal Republic of Germany was sufficient
to avoid the spread of pathogens.

The time-limit imposed for derogations is an unjustified
encroachment on freedom of property and freedom to
pursue an occupation, and on freedom as to how business
is run, because the member undertakings of plaintiffs 1
and 2 are entitled to special protection of their right to
rely on being able to pursue their activities and continue
to use their facilities — most of which have been only
recently modernised. Their facilities and their activities
have been brought into compliance with stringent legal
requirements which are based on scientific evidence. They
must therefore be able to rely on being able to continue
to pursue their activities and use their facilities as long as
they keep to those stricter requirements and no new
scientific evidence is available. In addition, the regulation’s
provisions take no account of the fact that as a rule it is
not possible for the food waste processors concerned to
alter the use of their facilities and business premisses.

( 1) OJ 2002 L 273, p. 1.

Action brought on 30 December 2002 by Linea Gig S.r.l.
(in liquidation) against the Commission of the European
Communities

(Case T-398/02)

(2003/C 44/80)

(Language of the case: Italian)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 30 December 2002 by Linea Gig
(in liquidation), represented by Lucio D’Amario and
S.r.l.
Bruno Lazia, Lawyers.

The applicant claims that the Court should:

— annul the contested decision, in whole or in so far as it

concerns the applicant;

— in the alternative, annul Article 3 of the decision in so far

as it imposes a fine on the applicant;

— in the further alternative, reduce the amount of the fine

imposed on the applicant;

— order the Commission to pay the costs;

— order the Commission to reimburse the whole of the
costs incurred by the applicant in the administrative
proceedings.

Pleas in law and main arguments

The present action is directed against the Decision of 30 Octo-
ber 2002 COMP/35.587 PO Video Games, COMP/35.706 PO
Nintendo Distribution and COMP/36.321 Omega-Nintendo
doc. C(2000) 4072 final, wherein the Commission found that
the applicant had infringed Article 81(1) EC and Article 53(1)
of the EEA agreement as a result of its involvement, during the
period from 1 October 1992 to the end of December 1997, in
a series of agreements and concerted practices in the market
for video game consols and cartridges compatible with the
Nintendo console, the purpose and effect of the agreements
and practices being to limit parallel exports of Nintendo

C 44/44

EN

Official Journal of the European Union

22.2.2003

consols and cartridges. The applicant
is alleged to have
participated actively in a distribution agreement which imped-
ed exports and to have provided information to assist with
retracing the origins of parallel
exports. A fine of
EUR 1,5 million was also imposed on the applicant.

Action brought on 31 December 2002 by Eurocermex
S.A. against the Office for Harmonisation in the Internal
Market

The applicant does not propose to dispute the material facts
upon which the decision rests. However, it submits that the
decision is vitiated, in law, in a number of respects, putting
forward the following pleas:

(Case T-399/02)

(2003/C 44/81)

(Language of the case: French)

— Incorrect application of Article 81 EC in so far as concerns
the first distribution agreement concluded between Linea
Gig S.r.l. Nintendo Corporation Ltd. and error in finding
the applicant responsible for the anti-competitive conduct
attributed to the parties involved.

An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 31 December 2002 by Eurocermex
S.A., established in Evere, Belgium, represented by André
Bertrand, lawyer.

— Inconsistency within the decision and infringement of
Article 253 EC. It is submitted in this regard that, despite
the fact that relations and dealings between Nintendo and
its retail and wholesale customers and relations and
dealings between John Menzies and its customers were
identical to relations and dealings between Nintendo and
its authorised distributors, the Commission decided to
assess them in different fashions and alleged involvement
in the supposed agreements and concerted practices only
against Nintendo and its national distributors.

The applicant claims that the Court should:

— annul the decision by which the examiner found that the
three-dimensional trade mark at issue was not such as to
constitute a valid trade mark for ‘beers, mineral and
aerated waters and fruit juices’,
‘restaurants, bars and
snack bars’;

— send the case back to the examiner for prosecution;

— order the Office to pay the costs.

concerted

agreements

— Failure to assess the economic context in which the
supposed
practices
and/or
occurred. The applicant says that the Commission failed
properly to define the relevant markets, failed to assess
Nintendo’s position in the relevant markets identified —
instead merely evaluating its market shares in certain
Member States — and failed to assess Nintendo’s market
position in 1990, the year in which the distribution
agreements were concluded, or at all during the period
1992 to 1997, instead arbitrarily choosing certain other
years.

Pleas in law and main arguments:

The trade mark in ques-
tion:

three-dimensional mark
rep-
resenting a ‘long neck’ bottle on
the neck of which a piece of
lemon has been plugged, claiming
the colours yellow and green.

Goods or services con-
cerned:

goods
and 42.

in Classes 16, 25, 32

— Infringement of Article 15(2) of Regulation EEC No 17/
62 and breach of the principles of equality and pro-
portionality in the Commission’s assessment of
the
intention behind the applicant’s conduct and its fixing of
the amount of the fine, in that it set the fine higher than
the maximum permissible sum, selected the wrong
basic amount and failed to take account of mitigating
circumstances.

contested
Decision
before grant of
regis-
tration as regards Class-
es 16 and the Board of
Appeal:

Grounds pleaded:

25 and refusal as regards Class-
es 32 and 42.

Infringement of Article 7(1)(b)
and (3) of Regulation (EC) No 40/
94.