Case T-56/06: Action brought on  17 February 2006  — France v Commission
Date: 2006-02-17
Institutions: Court of First Instance
Subjects: European Commission, France, State aid, action for annulment (EU), control of State aid, excise duty, fuel, mineral oil, tax exemption, tax relief

22.4.2006

EN

Official Journal of the European Union

C 96/21

Forms of order sought

wrongly fixed in the light of the application of the Notice on
the non-imposition or reduction of fines.

The applicant claims that the Court should:

— annul

the defendant's decision of 30 November 2005
relating to a proceeding pursuant to Article 81 of the EC
Treaty (Case C(2005) 4635 final, COMP/F/38.354 — Indus-
trial bags), served on the applicant on 14 December 2005,
in so far as it concerns the latter;

in the alternative, reduce the fine imposed on the applicant;

— order the defendant to bear the costs of the proceedings.

(1) Council Regulation No 17: First Regulation implementing Articles
85 and 86 of the Treaty (OJ, English Special Edition 1959-1962, p.
87).

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

Action brought on 17 February 2006 — France v Commis-
sion

(Case T-56/06)

(2006/C 96/38)

Pleas in law and main arguments

Language of the case: French

The applicant challenges Commission Decision C(2005) 4634
final of 30 November 2005 in Case COMP/F/38.354 — Indus-
trial bags. In the contested decision a fine was imposed on the
applicant for infringement of Article 81 EC since, according to
the Commission, it participated in a complex of agreements
in
and concerted practices
Belgium, Germany, Spain, France, Luxembourg and the Nether-
lands.

in the industrial bags

sector

Parties

Applicant: French Republic (Paris, France) (represented by: G. de
Bergues and S. Ramet, Agents)

Defendant: Commission of the European Communities

In support of its action the applicant submits that the contested
decision infringes the duty of administrative authorities to
comply strictly with the law. The defendant's method of
levying fines does not fall within the scope of the enabling
provision, namely Article 15(2) of Regulation No 17/1962 (1),
or Article 23 of Regulation No 1/2003 (2). In that regard, the
applicant also claims that the principles of equal treatment and
proportionality have been infringed.

Form of order sought

The applicant claims that the Court should:

— primarily, annul the contested decision in its entirety;

— in the alternative, annul Article 5 of that decision;

— order the Commission to pay the costs.

In addition, the applicant complains that Article 15(2) of Regu-
lation No 17 and the guidelines on fixing fines have been
misapplied. In particular, the submission and evaluation of the
evidence in relation to the applicant was irregular. Furthermore,
in view of previous administrative practice the applicant was
disproportionately fined. As regards the amount of the initial
sum for the gravity of the infringement, the applicant alleges
that it was treated unequally, in several respects, in relation to
the other parties to which the contested decision was also
addressed. In addition, the applicant claims that the Commis-
sion erred in law with regard to the assessment of the duration
of the infringement and did not take mitigating circumstances
into account. Finally, the applicant submits that Article 15(2)
of Regulation No 17 has also been infringed as the fine was

Pleas in law and main arguments

By decision of 30 June 1997, adopted following a proposal
from the Commission and in accordance with the procedure
laid down in Directive 92/81/EEC (1), the Council authorised
Member States to apply or to continue to apply the existing
reduced rates of excise duty or exemptions from excise duty to
certain mineral oils when used for specific purposes. By four
subsequent decisions, the Council extended this authorisation,
the final authorisation period expiring on 31 December 2006.
France is authorised to apply these reduced rates or exemptions
to heavy fuel oil used as fuel for the production of alumina in
the Gardanne region.

C 96/22

EN

Official Journal of the European Union

22.4.2006

In a letter of 30 October 2001 the Commission notified France
of its decision to initiate proceedings under Article 88(2) of the
EC Treaty relating to the exemption from excise rights on
for alumina production in the
mineral oils used as fuel
Gardanne region (2). On 7 December 2005, in consequence of
this procedure,
the Commission adopted the disputed deci-
sion (3) finding that exemptions from excise duty on mineral
for alumina production in the Gardanne
oils used as fuel
implemented by
the Shannon region and Sardinia,
region,
France,
Ireland and Italy respectively, constituted State aid
within the meaning of Article 87(1) EC that is in part incompa-
tible with the common market, and thus ordered the Member
States concerned to recover all such aid.

expectations,
period.

legal certainty and observance of a reasonable

(1) Council Directive of 19 October 1992 on the harmonisation of the

structures of excise duties on mineral oils

(2) Published in OJ 2002 C 30
(3) Decision C (2005) 4436 final, State aid Nos C 78-79-80/2001
(4) Decision of the Court of 24 July 2004, Altmark Trans, C-280/00,

ECR p. I-7747

France seeks by this action to have that decision annulled in
part in so far as it affects the exemption granted by France to
the Gardanne region.

In support of its action it relies on several pleas, the first
deriving from infringement of the concept of State aid within
the meaning of Article 87(1) EC. It submits that the Commis-
sion committed an error of law in holding that State aid existed
even though not all the conditions required to establish the
existence of aid, as laid down in the Altmark case (4), had been
competition be
fulfilled, particularly
restricted or that
the internal market be
distorted. It maintains that the Commission cannot, on the one
hand, propose that the Council adopt a decision on the founda-
tion of Directive 92/81/EEC authorising an exemption of excise
duty and object not to that exemption's being extended and, on
the other hand, find that that exemption constitutes State aid
incompatible with the common market.

the function of

condition that

the

The second plea raised by the applicant alleges a failure to give
reasons in that the decision contested contains a contradiction
in the Commission's reasoning relating to the finding of a
restriction on competition.

The applicant's third plea, submitted in the alternative, is that
the demand for recovery set out in Article 5 of the contested
decision breaches the principles of protection of
legitimate
expectations,
legal certainty and observance of a reasonable
period. It claims that the beneficiaries of the exemption are
entitled to rely on the principles of legal certainty and protec-
tion of legitimate expectations until the decision in dispute is
adopted, rather than until the date of publication of the deci-
the
sion to initiate
investigation proceedings, as
the
Commission maintains. The applicant also asserts that
Commission's failure to act for a period of four years between
the decision to initiate proceedings and the final decision
constitutes a breach of the principles of protection of legitimate

formal

Action brought on 17 February 2006 — Marly v OHIM

(Case T -57/06)

(2006/C 96/39)

Language in which the application was lodged: French

Parties

Applicant: Marly SA (Brussels, Belgium)
Mouffe, lawyer)

(represented by: B.

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal of
OHIM: Erdal Gesellschaft m.b.H. (Hallein, Austria)

Form of order sought

The applicant claims that the Court should:

— annul the decision of the Board of Appeal of OHIM in so
far as it upholds the opposition by the proprietor of the
word mark ‘TOFIX’;

— order the defendant to pay the costs, including expenses
necessarily incurred during proceedings before the Board of
Appeal, incurred by the party initiating the proceedings and
as calculated in the decision under appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Community trade mark concerned: the figurative mark ‘TOPIX’ for
goods in Class 3 (application No 2 326 072)

Proprietor of the mark or sign cited in the opposition proceed-
ings: Erdal Gesellschaft m.b.H.