Case T-52/03: Action brought on 13 February 2003 by Knauf Westdeutsche Gipswerke KG against the Commission of the European Communities
Date: 2003-05-24
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), equal treatment, fine, infringement of EU law, plaster

C 124/22

EN

Official Journal of the European Union

24.5.2003

Action brought by Alsen AG against the Commission of
the European Communities on 31 January 2003

event should guarantee costs be imposed upon the applicant
that were necessary for it to pay in pursuing its rights.

(Case T-28/03)

(1) Decision 94/815/EC of 30 November 1994 in Cases IV/33.126

and 33.122 (Cement).

(2) Judgment of 15 March 2000 in Joined Cases T-25/95 and Others

(2003/C 124/39)

[2000] ECR II-491.

(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 31 January 2003 by Alsen AG,
Hamburg (Germany),
represented by K. Moosecker and
F. Weimer, lawyers.

The applicant claims that the Court should:

— order the Commission to pay to the applicant the sum of
EUR 139 002,21 together with interest at an overall rate
of 5,75 % for the period from 15 April 2000 until
payment has been made in full;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant seeks an order that the Commission pay the
costs of a guarantee. According to the applicant, those costs
arose because the Commission imposed a fine on the applicant,
by decision (1), for an alleged infringement of Article 81 EC.
By judgment of 15 March 2000 (2) that decision was annulled
by the Court of First Instance in so far as it concerned the
applicant. During the procedure before the Court the applicant
had to lodge securities in the form of two bank guarantees for
the fine during the period April/May 1995 to May 2000,
for which the issuing banks’ charged commission of
the
abovementioned amount.

The applicant claims that under Article 233 EC it has a right
to require the Commission to repay the costs of the guarantees.
The Commission is obliged to adopt the measures that follow
from the judgment of 15 March 2000 and those measures
include the payment of the guarantee costs of the successful
party. The Court of First Instance itself stated in the judgment
that the refund of the cost of guarantees is one of the measures
which the Commission must take under Article 233 EC.

the applicant claims that the Commission’s
Furthermore,
obligation to refund the guarantee costs also follows from
Article 288(2) EC in conjunction with Article 235 EC. In no

Action brought on 13 February 2003 by Knauf Westdeut-
the
sche Gipswerke KG against the Commission of

European Communities

(Case T-52/03)

(2003/C 124/40)

(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 13 February 2003 by Knauf
Westdeutsche Gipswerke KG, Iphofen (Germany), represented
by M. Klusmann and F. Wiemer, lawyers.

The applicant claims that the Court should:

— annul Commission Decision C(2002)4570 final of
27 November 2002 in so far as it concerns the applicant;

— in the alternative, reduce appropriately the fine imposed

on the applicant in the contested decision;

— order the defendant to pay the costs.

Pleas in law and main arguments

In the contested decision the Commission found that the
applicant and three other undertakings had infringed
Article 81(1) by participating in a body of agreements and
concerted practices in the plasterboard sector. A fine of EUR
85,8 million was imposed on the applicant.

The applicant contests that decision and claims that it infringes
the applicant’s rights of defence and the principle of the right
to due process of law. It submits, inter alia, that in essence the
decision is based on evidence against it which has never been
made available to the applicant despite its requests to that

24.5.2003

EN

Official Journal of the European Union

C 124/23

effect. Moreover, the right to due process of law is infringed
by the case-handler’s inadequate knowledge of languages or
the premature change of case-handler.

is not guilty of any
The applicant also submits that it
infringement of Article 81(1) EC.
the
It complains that
Commission based its decision on an incoherent presentation
of the events. In the alternative, it submits that in any event it
cannot be charged with participation in a single infringement
over a lengthy period. This leads to a reduction in gravity and
to the limitation of actions in respect of individual acts that
took place more than five years before the beginning of
proceedings.

Moreover, the applicant submits that the decision infringes
Article 15(2) of Regulation No 17/62 with regard to the upper
limit of the fine. The applicant is not the ultimate parent
company of ‘Unternehmensgruppe Knauf’ and it cannot be
held liable for the conduct of other companies, because the
Knauf undertaking is not connected via a single legal person
as ultimate parent company of the group. The applicant also
complains that
the
necessary investigations in that respect.

the Commission failed to carry out

Furthermore, the applicant complains that the Commission
infringed Article 253 EC and Article 15(2) of Regulation
No 17/62 as a result of the assessment of the fine, which
exceeded the limits of its discretion. Moreover, the Commission
infringed the principle of equal treatment, because it did not
reduce the applicant’s fine even though the applicant had
cooperated with the Commission to the same extent as BPB
plc., whose fine was reduced by 30 %.

Finally, the applicant complains of the excessive length of the
procedure and claims that it is an infringement of Article 6(1)
of the European Convention for the Protection of Human
Rights.

European Communities on 26 February 2003 by Koffiebrand-
erij en Theehandel ‘Drie Mollen sinds 1818’ B.V., ’s-Hertogen-
bosch, the Netherlands, represented by Mr P. Steinhauser,
Lawyer, with an address for service in Luxembourg. Manuel
Nabeiro Silveria, Lda. was also a party to the proceedings
before the Board of Appeal.

The applicant claims that the Court should:

— annul the decision of 17 December 2002 of the Second

Board of Appeal in case R 270/2001-2

— order the office to bear only its own costs.

Pleas in law and main arguments

Applicant for the Com- Manuel Nabeiro Silveria, Lda.
munity trade mark:

Community trade mark
sought:

Figurative mark ‘GALAXIA’, for
‘coffee’ in class 30 (registration n
812073)

Proprietor of mark or
sign cited in the oppo-
sition proceedings:

KOFFIEBRANDERIJ EN THEE-
HANDEL ‘DRIE MOLLEN SINDS
1818’

Mark or sign cited in
opposition:

National marks ‘GALA’ for certain
goods in class 30

Decision of the Oppo-
sition Division:

Opposition rejected.

Decision of the Board of
Appeal:

Opponent’s appeal dismissed.

Action brought on 26 February 2003 by Koffiebranderij
en Theehandel ‘Drie Mollen sinds 1818’ B.V. against the
Office for Harmonisation in the Internal Market (Trade
Marks and Designs) (OHIM)

Pleas in law:

(Case T-66/03)

(2003/C 124/41)

(Language of the case: English)

An action against the Office for Harmonization in the Internal
Market was brought before the Court of First Instance of the

— misapplication of Article 42
paragraph 1 and Article 8
paragraph 1 b) of Regu-
lation 40/94 (1). The appli-
cant challenges the Board of
conclusion that
Appeal’s
there is no likelihood of con-
fusion between the
two
marks.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 11, p. 1).