Case T-13/03: Action brought on 16 January 2003 by Nintendo Co., Ltd. and Nintendo of Europe GmbH against the Commission of the European Communities
Date: 2003-03-22
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), automatic game, equal treatment, fine, offence

22.3.2003

EN

Official Journal of the European Union

C 70/27

Action brought on 15 January 2003 by Mrs Elizabeth
Afari against the European Central Bank

— Violation of the principle of proportionality as to the

penalty.

(Case T-11/03)

(2003/C 70/43)

— Violation of the Council Directive 2000/43 of 29 June
2000 implementing the principle of equal treament
between persons
racial and ethnic
irrespective of
origin (1).

(Language of the case: English)

(1) Official Journal L 180, of 19.7.2000, p. 22.

An action against the European Central Bank was brought
before the Court of First Instance of the European Communities
on 15 January 2003 by Mrs Elizabeth Afari, Frankfurt,
Germany, represented by Mr Georges Vandersanden and
Mr Laure Levi, Lawyers.

The applicant claims that the Court should:

— annul the disciplinary decision of the ECB of 5 November
2002 imposing on the Appellant a written reprimand;

Action brought on 16 January 2003 by Nintendo Co., Ltd.
and Nintendo of Europe GmbH against the Commission
of the European Communities

(Case T-13/03)

(2003/C 70/44)

— order that the ECB pays 1 euro as compensation for the

(Language of the case: English)

moral predudice;

— order that the ECB pays the costs.

Pleas in law and main arguments

The Appellant in the present case challenges the decision of
the defendant’s Administration imposing on her a disciplinary
measure consisting of a written reprimand. The main charges
against her were that she made allegations of racism and
accused members of the management of the ECB of encourag-
ing xenophobia.

She complains that at
the beginning of this disciplinary
procedure there was a difficult relationship with a colleague
who put her under very strong pressure, harassment and
discriminated against her in many ways. The conflict escalated
to a written complaint, as she unsuccessfully called the
attention of her management on that situation.

The Appellant invokes the following as pleas in law:

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 16 January 2003 by Nintendo
Co., Ltd., Kyoto,
Japan and Nintendo of Europe GmbH,
Großostheim, Germany, represented by Mr Ian Forrester, QC,
Mr
John Pheasant, Solicitor, Mr Mark Powell, Solicitor,
Ms Ciara Kennedy-Loest, Solicitor and Mr James Killick,
Barrister.

The applicant claims that the Court should:

— annul Article 3 of the decision to the extent that it

imposes an unlawfully large fine on Nintendo;

— set a lower fine (if any) in such amount as may appear
appropriate to the Court in the exercise of its unlimited
discretion pursuant to Article 229 EC;

— order the Commission to pay the applicant’s costs

— take such other or further steps as justice may require

— Violation of the duty to state reasons, of the right to good

Pleas in law and main arguments

administration and of the obligation of due care.

— Violation of the rights of defense, in so far as the burden
of the proof would have been illegally put on the
applicant’s shoulders and her right to be heard, as well as
the principle of impartiality, would have been ignored.

— Manifest error of appreciation in relation to the substance
of the case. Concretely, it is submitted that the applicant
has violated neither Article 4(1) of Conditions of Employ-
ment for Staff of the ECB, nor the ECB Code of Conduct.

The applicants contest the decision of the Commission decision
C(2002) 4072 final of 30 October 2002 in Cases COMP/
35.587 PO Video games, COMP/35.706 PO Nintendo Distri-
bution and COMP/36.321 Omega-Nintendo, regarding an
infringement of Article 81 (1) of the EC Treaty insofar as it
imposes an unlawfully large fine on the applicants.

In support of their application, the applicants claim that the
Commission has infringed essential procedural requirements

C 70/28

EN

Official Journal of the European Union

22.3.2003

such as the rights of defence, the principle of impartiality and
fairness, the obligation to state the reasons for a decision and
the obligation to make decisions within a reasonable period.
The applicants furthermore invoke violations of general prin-
ciples of law such as the principle of proportionality, equal
treatment, non bis in idem,
legitimate expectations and
transparency, coherence and non-discrimination.

According to the applicants, the fine imposed on them was
unlawful in that its amount was manifestly exorbitant and that
several steps by which this amount was calculated were
individually unlawful. The applicants submit that the setting
of the amount of the fine for gravity was made on the
manifestly inappropriate basis of the applicants’ share of sales
of Nintendo’s products. If there were other considerations,
these were, according to the applicants, insufficiently stated.

The decision then applied an increase for deterrence where,
according to the applicants, none was appropriate and in a
manner that conflicted with previous policy, was based on an
error of law, involved double counting and infringed the rights
of defence. The applicants also state that a multiplier of 3 for
deterrence was contrary to the principle of equal treatment,
without giving sufficient reasons and on the basis of an
inappropriate methodology.

The applicants furthermore submit that the decision imposed
an increase on the fine of 10 % for each full year of
the infringement although the infringement was not of a
continuous intensity. According to the applicants, the increase
to the fine for the first full year of the infringement is also
contrary to the Commission’s guidelines.

Action brought on 15 January 2003 by José Luis Zuazaga
Meabe against Office for Harmonisation in the Internal
Market (trade marks and designs) (OHIM)

(Case T-15/03)

(2003/C 70/45)

(Language of the case: Spanish)

An action against Office for Harmonisation in the Internal
Market (trade marks and designs) (OHIM) was brought before
the Court of First Instance of the European Communities on
15 January 2003 by José Luis Zuazaga Meabe, residing in
Bilbao (Spain), represented by José Antonio Calderón Chavero.

The applicant claims that the Court should:

— set aside the decision of the Second Board of Appeal of
the OHIM of 24 October 2002 in Case R-918/2001;

— uphold in its entirety the opposition submitted in pro-

ceeding B 290157;

— uphold the arguments submitted by the applicant and
allow the appropriate Opposition Division of the OHIM
to refuse to register the trade mark in question; and

— order the defendant to pay the costs.

Pleas in law and main arguments

With regard to an increase of 75 % to the fine for aggravating
circumstances, the applicants submit that this is based on
manifest errors of assessment of the applicants’ situation and
behaviour and is contrary to the Commission’s previous policy
and practice.

Applicant for the Com-
munity trade mark:

BANCO BILBAO
ARGENTARIA S.A.

VIZCAYA

The Community trade
mark concerned:

—

‘BLUE’
Application
No 1345974, for goods and ser-
vices in Classes 9, 36 and 38

The applicants finally submit that the granting of a reduction
of 25 % for attenuating circumstances did not give proper
regard to the criteria specified in the Leniency Notice and the
It
Commission’s previous policy and practice thereunder.
was also not consistent with the treatment given to other
undertakings in this case and did not take proper account of
the behaviour of
the applicants who had voluntarily
approached the Commission to inform it of the infringing
conduct. The altered assessment of the applicants’ cooperation
during the administrative procedure, also infringed, according
to the applicants, on its rights of defence.

Proprietor of the right to
the trade mark or sign
asserted by way of oppo-
sition in the opposition
proceedings:

Trade mark or
sign
asserted by way of oppo-
sition in the opposition
proceedings:

Decision of the Oppo-
sition Division:

The applicant

Spanish word mark BILBAO
BLUE for services in Class 36

Partial refusal of the application
in respect of certain services in
services;
Class 36 (Insurance
financial affairs; monetary affairs
and real estate affairs)