Case T-34/05: Action brought on 31 January 2005 by Bayer CropScience AG, Makhteshim Agan Holding BV, Alfa Agricultural Supplies S.A. and Aragonesas Agro S.A. against the Commission of the European Communities
Date: 2005-04-16
Institutions: Court of First Instance
Subjects: European Commission, appeal to the Court (EU), market approval, marketing standard, pharmaceutical industry, plant health product, testing

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.

C 93/32

EN

Official Journal of the European Union

16.4.2005

The applicants further consider that the Commission's failure to
review all the data they submitted neither achieves the desired
objective of assessing the safety of plant protection products
nor constitutes the least restrictive means to achieve such
objectives, since the resulting decision not to include endo-
sulfan in Annex I would cause it to be withdrawn from the EU
market with irreparable commercial consequences for
the
applicants. On this basis the applicants consider the Commis-
sion violated the principles of proportionality, of legitimate
expectations and of
the applicants
submit that by failing to act the Commission encroaches upon
their right to conduct business activities and interferes with
their right of property.

legal certainty. Finally,

(1) Council Directive 91/414/EEC of 15 July 1991 concerning the
placing of plant protection products on the market, OJ L 230, p. 1.

Action brought on 31 January 2005 by Coats Holdings
Limited and J & P Coats Limited against the Commission
of the European Communities

(Case T-36/05)

(2005/C 93/62)

(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 Coats Holdings
Limited, established in Uxbridge (United Kingdom) and J & P
Coats Limited established in Uxbridge (United Kingdom), repre-
sented by W. Sibree and C. Jeffs, Solicitors.

The applicants claim that the Court should:

— declare void and annul the Commission's Decision of 26
October 2004 in Case COMP/F-1/38.338/PO - Needles
Doc. C(2004) 4221-final);

— in the alternative, annul such parts of the decision as the
Court finds that the Commission has failed to prove or are
vitiated by manifest error or inadequate reasoning;

— annul or reduce the fine imposed on the applicants.

— order the Commission to bear its own costs and those

incurred by the applicants.

Pleas in law and main arguments

In the contested decision the Commission found that during
the period extending from 10 September 1994 to 31
December 1999, the applicants, among other undertakings,
had infringed Article 81(1) EC by engaging in concerted prac-
tices and entering into a series of agreements which amounted
to a tripartite agreement having the effect and object of (i)
sharing the European hard haberdashery market, a fact which
amounts to product market sharing between the hand sewing
and special needles market with the wider markets for needles
and with other hard haberdashery markets, and (ii) partitioning
the European market for needles, a fact which amounts to
geographic market sharing in the needles market.

In support of their application the applicants invoke first of all
a series of manifest errors of assessment on the part of the
Commission. The applicants do not contest the Commission's
findings in relation to the existence of a cartel between the
other undertakings mentioned in the contested decision.
However, the applicants claim that the Commission's finding
that the applicants had also participated in the same cartel is
based on speculation, unjustified inference, a large number of
simple factual errors and a series of strained interpretations of
events. The applicants consider that the Commission's errors
are inevitable since it conducted a defective investigation
during which it failed to address any pertinent questions to the
applicants about the meetings and agreements in question and
has failed to appreciate the commercial context in which the
applicants operated and which led them to enter into entirely
legitimate agreements for the sale of a business and the subse-
quent supply of needles.

The applicants further claim that even if the Court were to
uphold all or part of the alleged infringement the fine should
be reduced substantially. According to the applicants the
Commission imposed the same fine on the Applicants as that
imposed on another participant, despite the fact that even in
the Commission' s version of events the applicants played only
a minor role compared to the other undertakings. The appli-
cants also considers that the fine is grossly disproportionate to
their turnover in the needles market, the only market where
their participation could have had any impact, and in this sense
grossly disproportionate to any potential economic benefit to
themselves or harm to consumers.