Case T-55/06: Action brought on  22 February 2006  — RKW v Commission
Date: 2006-02-22
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), fine, industrial product, packaging product, 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

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.