Case T-492/04: Action brought on 23 December 2004 by Jungbunzlauer AG and three others against the Commission of the European Communities
Date: 2005-04-02
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), chemical industry, competition law, fine, restrictive trade practice, sanction (EU)

C 82/30

EN

Official Journal of the European Union

2.4.2005

— reinstate the decision of the Opposition Division of 29
April 2002 (Decision No 1198/2002), namely to reject
Community trade mark application No 453 720 for the
following goods and services:

Decision of
of Appeal:

the Board

Appeal brought by Focus Magazin
Verlag GmbH allowed and appli-
cant's opposition rejected.

‘Machine readable data carriers of all types equipped with
information, and software, in particular digital and analog
for example, cultural, scientific,
data carriers containing,
industrial or technical
information; programmed floppy
disks, CD-ROM video cassettes, compact discs, chip discs;
magnetic data carriers in Class 9;

Publications, newspapers and periodicals, books, posters,
calendars, photographs;
typewriter and office requisites,
namely non-electric office equipment, writing implements,
ball-point pens, fountain pens, teaching and instructional
material,
including in the form of models and display
boards in Class 16;

Pleas in law:

Article 8(1)(b) of Regulation (EC)
No 40/94 has been misapplied.
There is a likelihood of confusion
between the
conflicting marks.
The later mark applied for has
adopted an element of the earlier
mark identically and the goods
and services covered by the marks
are partly identical
and partly
extremely similar.

Publication of digital and analog data carriers containing,
for example, cultural, scientific, sports, industrial or tech-
nical
information in Class 41 and up-dating services,
including for CD ROMs; editor's services in Class 42.’;

Action brought on 23 December 2004 by Jungbunzlauer
AG and three others against the Commission of the Euro-
pean Communities

— order the defendant to pay the costs.

Pleas in law and main arguments:

(Case T-492/04)

(2005/C 82/58)

(Language of the case: German)

Applicant
munity trade mark:

for

Com-

Focus Magazin Verlag GmbH

Community trade mark
sought:

for goods
Word mark 'FOCUS'
and services in Classes 3, 6, 7, 8,
9, 14, 15, 16, 20, 21, 24, 25, 26,
28, 29, 32, 33, 35, 36, 38, 39,
41, 42 – application No 453 720.

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 23 December 2004 by Jungbun-
Jungbunzlauer Ladenburg
zlauer AG, Basel
GmbH, Ladenburg (Germany),
Jungbunzlauer Holding AG,
Chur (Switzerland) and Jungbunzlauer Austria AG, Vienna,
represented by R. Bechtold, M. Karl, U. Soltész and C. Steinle,
lawyers.

(Switzerland),

Proprietor of mark or
sign cited in the opposi-
tion proceedings:

The applicant.

The applicants claim that the Court should:

Mark or sign cited in
opposition:

The international figurative mark
for goods and
'MICRO FOCUS'
services in Classes 9, 16, 41 and
42.

Decision of the Opposi-
tion Division:

Opposition allowed in part.

1. annul

in its entirety the Commission's decision of 29
September 2004 (Case COMP/E-1/36.756 – Sodium gluco-
nate);

alternatively, annul
addressees,

the decision in regard to individual

alternatively, reduce the fine imposed in the decision;

2. order the Commission to pay the applicants' costs;

2.4.2005

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Official Journal of the European Union

C 82/31

3. obtain and refer to the documents in case T-312/01 and
adopt any other procedural measures which the Court
considers appropriate.

Action brought on 24 December 2004 by Commission of
IIC Informations-
the European Communities against

Industrie Consulting GmbH

Pleas in law and main arguments

the Commission found that

By the contested decision,
the
applicants had participated in a continuous agreement and/or
concerted practice in the sodium gluconate sector and had
thereby infringed Article 81(1) EC and Article 53 of the EEA
Agreement. As a result, fines were imposed on those undertak-
ings.

The applicants are contesting that decision and submit that it
was only Jungbunzlauer Ladenburg GmbH which was respon-
sible for the infringement. Jungbunzlauer Austria AG and Jung-
bunzlauer AG did not at any time participate in the infringe-
ment and had no influence on the market behaviour or
company policies of Jungbunzlauer Ladenburg GmbH. Nor, in
the applicants' submission, were they liable by virtue of their
association with Jungbunzlauer Ladenburg GmbH from the
point of view of company law, or by virtue of their member-
ship of the Jungbunzlauer group. Jungbunzlauer Holding AG
was merely a holding company without any decisive influence
on the production volume and pricing policies and thereby on
Jungbunzlauer Ladenburg GmbH in the
the behaviour of
sodium gluconate market.

Jungbunzlauer Austria AG,

Even if
Jungbunzlauer AG and
Jungbunzlauer Holding AG had been responsible for the infrin-
gement, which, according to the applicants, is not the case, the
Commission's power to impose fines on those companies had
already been lost through lapse of time.

Furthermore, the applicants claim that, in so far as the decision
is addressed to Jungbunzlauer Ladenburg AG, it is defective in
form and substance, because the Commission was in breach of
a number of rules and principles. Among other, the Commis-
sion infringed the principles of presumed innocence and good
administration by carrying out a second administrative proce-
dure while the court proceedings relating to a decision of 2
October 2001 concerning the same cartel were still pending.
By its ‘second’ decision of 29 September 2004, the Commission
also infringed the principle of legitimate expectation and the
principle of ne bis indem. Moreover, the length of the proceed-
ings was unreasonable.

With regard to the fine imposed, the applicants assert, among
other, that the fine is disproportionately high and exceeds the
upper limit of fines, that the Commission is mistaken in its
assumption of duration, that Jungbunzlauer Ladenburg GmbH
is not the ringleader and that there are extenuating circum-
stances due to the excessive length of the proceedings.

(Case T-500/04)

(2005/C 82/59)

(Language of the case: German)

An action against IIC Informations-Industrie Consulting GmbH,
Königswinter (Germany), was brought before the Court of First
Instance of the European Communities on 24 December 2004
by the Commission of the European Communities, represented
by G. Braun, W. Wils and N. Knittlmayer, acting as Agents,
with an address for service in Luxembourg.

The applicant claims that the Court should:

1. order

the

defendant

applicant
EUR 181 236,61 together with interest at 4 % as from 1
November 1998;

pay

the

to

to

2. order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

In 1996 the applicant concluded with the defendant
two
contracts in which the applicant undertook to grant the defen-
dant financial aid for the implementation of two trans Euro-
pean cultural projects. The financial aid was intended to cover
50 % of the defendant's project costs in so far as those costs
were incurred and claimed in a contractually permissible
manner. In 1997, on the basis of those contracts, the defendant
received a sum totalling DM 400 821 (EUR 204 936,52) as an
advance payment of the total financial aid.

Following completion of the projects, the defendant claimed
from the applicant purported project costs, the amount of
which it intended to deduct from the financial aid paid in
advance. However, the applicant carried out a check and came
to the conclusion that the defendant was entitled only to finan-
for both
cial aid totalling DM 46 300,18 (EUR 23 672,91)
projects. The applicant
the
remaining sum of EUR 181 263,61 (DM 354 520,82).

therefore claims repayment of