Case T-18/03: Action brought on 17 January 2003 by CD-Contact Data against the Commission of the European Communities
Date: 2003-03-22
Institutions: Court of First Instance
Subjects: European Commissioner, action for annulment (EU), automatic game, export restriction, software

22.3.2003

EN

Official Journal of the European Union

C 70/29

Decision of the Board of
Appeal:

Appeal upheld and opposition
dismissed in its entirety

Grounds of claim:

Misapplication of Article 8(1)(b)
of Regulation (EC) No 40/94 (like-
lihood of confusion and associ-
ation between the trade marks at
issue)

Action brought on 17 January 2003 by CD-Contact Data
against the Commission of the European Communities

(Case T-18/03)

(2003/C 70/46)

(Language of the case: English)

In support of its application, the applicant submits a violation
of Article 81 EC Treaty and a serious error of assessment in
fact and in law, as well as an infringement of essential
procedural requirements, such as the duty to state reasons.
According to the applicant, the Commission has not proven
to the requisite legal standard that the applicant agreed with
Nintendo to hinder parallel trade.

The applicant furthermore submits a breach of the principles
of proper administration, such as the principle of equality and
the principle of proportionality. In this respect, the applicant
also invokes a violation of the duty to state reasons. The
applicant states that the Commission needs to have regard to
the gravity and the duration of
the infringement when
establishing the fine. According to the applicant, the Com-
mission has not acted in accordance with these principles
because there is no convincing evidence that the applicant
entered into an agreement with Nintendo and, in any event,
the alleged infringements by the applicant had a much more
limited impact and shorter duration than the infringements of
Nintendo and its other distributors.

Action brought on 22 January 2003 by KAHLA/Thüringen
Porzellan GmbH against the Commission of the European
Communities

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 17 January 2003 by CD-Contact
Data, Burglengenfeld, Germany, represented by Mr J. K. de
Pree and Mr R. Wesseling, Lawyers.

The applicant claims that the Court should:

(Case T-20/03)

(2003/C 70/47)

(Language of the Case: German)

— annul the Commission’s decision of 30 October 2002 in
Cases COMP/35.587 PO Video games, COMP/35.706
PO Nintendo Distribution and COMP/36.321 Omega-
Nintendo in as far as addressed to the applicant (in
particular articles 1 and 3) in whole or in part;

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 22 January 2003 by KAHLA/
Thüringen Porzellan GmbH, having its registered office in
Kahla (Germany), represented by M. Schütte and S. Zühlke,
Rechtsanwälte.

— order the Commission to pay the costs

Pleas in law and main arguments

The applicant
is active in the fields of distributing and
republishing entertainment software. Between April and
December 1997, the applicant acted as exclusive distributor
for Nintendo products in Belgium and Luxemburg. The
Commission alleges that the applicant entered into an agree-
ment and/or restricted practice with Nintendo to restrict
parallel export.

The applicant claims that the Court should:

(1)

aside Article 1(2) of Commission Decision
Set
C(2002)4040 final of 30 October 2002 concerning State
aid provided by Germany for Kahla Porzellan GmbH and
KAHLA/Thüringen Porzellan GmbH (Proceeding C 62/
2000) in so far as that provision adversely affects the
applicant;

(2)

Set aside Article 2 in so far as it relates to the measures
referred to in point (1);

(3) Order the Commission to pay the costs of the proceed-

ings.