Case T-31/05: Action brought on 25 January 2005 by Sergio Rossi S.p.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2005-04-16
Institutions: Court of First Instance
Subjects: European Union Intellectual Property Office, Italy, action for annulment (EU), clothing industry, infringement of EU law, trade mark, trade-mark law

C 93/30

EN

Official Journal of the European Union

16.4.2005

— in the alternative, reduce the fines imposed in the decision;

— order the Commission to pay the costs of the applicants.

Pleas in law and main arguments

In the contested decision the Commission imposed a fine on
the applicants on the ground that they had infringed Article
81(1) EC by participating in a series of agreements and
concerted practices consisting of price-fixing and market-
sharing in the copper plumbing tubes sector.

to that decision and argue that

The applicants object
the
renewed imposition of fines in the present case offends against
the basic principle ne bis in idem, as the applicants had already
been found by the Commission to have committed a largely
similar infringement in the case of industrial tubes (COMP/E-1/
38.240). The applicants
in determining the
submit
amount of the fines, the Commission should have at least taken
the fines which had already been imposed into account and
that it is impermissible to divide up the single set of copper
tubes proceedings into separate industrial tubes proceedings
and plumbing tubes proceedings.

that,

— the Commission failed to take account of

fundamental
attenuating circumstances, such as the difficult state of the
market, the low percentage return on sales in the copper
piping market sector or the fact that the agreements were
terminated immediately after the searches.

In addition, the Commission infringed the principle of equal
treatment in that, inter alia, it unlawfully discriminated between
undertakings involved in the cartel by applying a greater fine
reduction to certain undertakings on account of cooperation
outside the Leniency Notice.

Finally, the applicants claim that in terms of determining the
starting amount of the fine Article 23(2) of Regulation (EC) No
1/2003 (2) infringes the principle of legal certainty and conse-
it grants the
quently, overriding Community law in that
Commission a virtually unfettered discretion.

(1) Guidelines on the method of setting fines imposed pursuant to
Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC
Treaty (OJ C 9, 14.1.1998, p. 3).

(2) Council Regulation (EC) No 1/2003 of 16 December 2002 on the
implementation of the rules on competition under Articles 81 and
82 of the Treaty (OJ 2003 L 1, p. 1).

Furthermore, the applicants argue that the fine is excessive and
that mandatory procedural principles, such as the duty under
Article 253 EC to state the reasons on which a decision is
based and the principles of proportionality and equal treatment
were disregarded when the amount of the fine was being deter-
mined. The applicants base their arguments inter alia on the
following provisions:

— in assessing the gravity of the infringement, the Commis-
sion based its conclusions on an inaccurate and insufficient
assessment of the type of infringement, its effects on the
market and the geographical scope of the agreements,

— in differentiating between the undertakings concerned, the
Commission should not only have taken their market share
into consideration, but also the size of the undertakings in
absolute terms,

— in its decision, the Commission did not give any indication
as to which principles it applied in determining the specific
basic amount of the fines and did not make it unambigu-
ously clear in its notice of objections that it was working
on the premise that the rules on competition had been
infringed in a particularly serious manner,

— in increasing the fine on account of the duration of the
agreements, the Commission incorrectly applied its guide-
lines on the method of setting fines (1) and additionally,
misjudged the fact that the limitation period of the right of
recourse for important issues raised in the case had already
expired,

Action brought on 25 January 2005 by Sergio Rossi S.p.A.
the Office for Harmonisation in the Internal
against

Market (Trade Marks and Designs)

(Case T-31/05)

(2005/C 93/60)

(Language in which the application was lodged: English)

An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on 25
January 2005 by Sergio Rossi S.p.A., established in San Mauro
Pascoli (Italy), represented by A. Ruo, lawyer.

K & L Ruppert Stiftung & Co. Handels-KG, established in Weil-
heim (Germany) was also a party to the proceedings before the
Board of Appeal.

The applicant claims that the Court should:

— annul the contested decision;

— order the Office for Harmonisation in the Internal Market

to pay the applicant's costs.

16.4.2005

EN

Official Journal of the European Union

C 93/31

Pleas in law and main arguments

Applicant
munity trade mark:

for

Com-

Community trade mark
concerned:

K & L Ruppert Stiftung & Co.
Handels-KG

The word mark ‘ROSSI’ for goods
in class 25 (Outer and under-
clothing; gloves, collar protectors,
scarves, neckties, headgear) —
application No 876 094

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

Sergio Rossi

shim Agan Holding BV, established in Amsterdam (The Nether-
lands), Alfa Agricultural Supplies S.A. established in Athens
(Greece) and Aragonesas Agro S.A. established in Madrid
represented by C. Mereu and K. Van Maldegem,
(Spain),
lawyers.

The applicants claim that the Court should:

— declare that the defendant has failed to comply with his
obligations under Community law to review scientific data
submitted by the applicants for the review of endosulfan
under Directive 91/414/EEC and to grant
them a due
process during the review;

Trade mark or
cited in opposition:

sign

and

The national and international,
word
figurative marks
for goods class
‘SERGIO ROSSI’
25 (articles of clothing, including
boots, shoes and slippers, scarves,
neck-ties, …)

— order the defendant to comply with his obligations under
Community law and act as requested by the applicants by
reviewing and considering all data submitted for the endo-
sulfan review and by granting them a due process,
including the right of defence and a fair hearing;

Decision of the Opposi-
tion Division:

Upholding of the opposition

— order the Defendant to pay all costs and expenses in these

proceedings.

Decision of
of Appeal:

the Board

Annulment of the decision of the
Opposition Division

Pleas in law:

Violation of Article 8 of Council
Regulation No 40/94.

Pleas in law and main arguments

Action brought on 31 January 2005 by Bayer CropScience
AG, Makhteshim Agan Holding BV, Alfa Agricultural
the
Supplies S.A. and Aragonesas Agro S.A. against

Commission of the European Communities

(Case T-34/05)

(2005/C 93/61)

(Language of the case: English)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 31 January 2005 by Bayer
CropScience AG, established in Monheim (Germany), Makhte-

By letter dated 24 September 2004 the applicants requested the
Commission to review scientific data submitted by the appli-
cants to the evaluating authority for the review and authorisa-
tion, under Directive 91/414/EC (1), of endosulfan, the active
substance of their plant protection product. They also asked to
be allowed to address and respond to issues raised by the
evaluators during the last stages of the review without any
prior consultation with the applicants. By letter dated 26
November 2004 the Commission replied that its services were
in the process of preparing a legislative proposal concerning
the non-inclusion of endosulfan in Annex I of Directive
91/414. This will result in a ban on the use of this substance.

In support of its application the applicants contend that by
failing to review all pertinent
and state-of-the-art data
submitted by the applicants the Commission violated Articles
95 (3) and 152 (1) EC. They further claim that by failing to act
on the applicants request the Commission violated the principle
of sound administration enshrined in Article 211 EC as well as
their rights of defence, the right to a fair hearing, the duty to
provide a statement of reasons and the principle of equal treat-
ment.