Case T-54/06: Action brought on  22 February 2006  — Kendrion v Commission
Date: 2006-02-22
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), fine, industrial product, packaging product, restriction on competition, restrictive trade practice

C 96/20

EN

Official Journal of the European Union

22.4.2006

Decision of
refusal of the application for registration.

the Opposition Division: Opposition allowed and

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Lapse of the trade mark ‘MORETTO’ on grounds of
lack of use, and the incorrect application of Article 8(1)(b) of
Regulation (EC) No 40/94 (risk of confusion).

Action brought on 22 February 2006 — Kendrion v
Commission

(Case T-54/06)

(2006/C 96/36)

Language of the case: Dutch

Parties

Applicant: Kendrion N.V. (Zeist, Netherlands) (represented by: P.
Glazener and C.C. Meijer, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

— set aside in whole or in part the decision addressed to the

applicant, inter alios;

— set aside or reduce the fine imposed on the applicant;

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

Pleas in law and main arguments

The applicant is challenging the Commission Decision of 30
November 2005 relating to a proceeding pursuant to Article
81 of the EC Treaty (Case No COMP/F/38.354 — Industrial
bags), in which the applicant was held to be guilty of infringing
the rules on competition and ordered to pay a fine.

In support of its action the applicant alleges breach of Article
81 EC, Article 253 EC and Article 15(2) of Regulation No
1/2003, on the ground that the operative part of the decision
is inconsistent with its grounds. The applicant submits that,
while it is not accused in the grounds of the contested decision
of individual participation in the breach, it is accused in the
operative part of breaching Article 81 EC.

The applicant goes on to submit that there has been a breach
of Article 81 EC, Article 253 EC and Article 23(2) of Regu-
lation No 1/2003 by reason of the fact that the Commission
wrongly assumed that the applicant and Fardem Packaging B.V.
formed a single economic unit, with the result that the appli-
cant was unjustly fined as a result of a breach by Fardem Packa-
ging.

The applicant submits that
the Commission also breached
Article 81 EC, Article 253 EC and Article 23(2) of Regulation
No 1/2003 and infringed general principles of law, including
the duty of care, the prohibition of arbitrary action, and the
principles of equality and proportionality.

The applicant goes on to submit that the Commission held the
applicant liable for a breach committed by Fardem Packaging,
contrary to other Commission decisions in which the parent
company was not held liable. Furthermore, the applicant, in its
capacity as parent company, incurred a fine in excess of that
for which the subsidiary, which committed the breach, was
held jointly and severally liable. The applicant claims further
that it was treated in a manner different to the other parent
companies held jointly and severally liable for breaches
committed by their subsidiaries. The fine imposed on the appli-
cant also amounts, it argues, to an infringement of the principle
of proportionality and the duty of care.

The applicant concludes by alleging a breach of the guidelines
for the calculation of fines, in particular as Article 5(b) of those
guidelines was not applied. The applicant submits that the
Commission failed to take proper account of the specific char-
acteristics of the undertaking.

Action brought on 22 February 2006 — RKW v Commis-
sion

(Case T-55/06)

(2006/C 96/37)

Language of the case: German

Parties

Applicant: RKW AG Rheinische Kunststoffwerke (Worms,
Germany) (represented by: H.-J. Hellmann, lawyer)

Defendant: Commission of the European Communities