Case T-72/06: Action brought on  23 February 2006  — Groupe Gascogne v Commission
Date: 2006-02-23
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), fine, industrial product, packaging product, restrictive trade practice

C 96/30

EN

Official Journal of the European Union

22.4.2006

Action brought on 28 February 2006 — Audi Aktienge-
sellschaft v OHIM

Form of order sought

(Case T-70/06)

(2006/C 96/48)

Language in which the application was lodged: German

Parties

Applicant: Audi Aktiengesellschaft (Ingolstadt, Germany) (repre-
sented by O. Gillert, F. Schiwek, lawyers)

The applicant claims that the Court should:

— primarily, set aside Articles 1(k), 2(i) and 4(12) of the deci-
sion in so far as they are addressed to Groupe Gascogne
and imposed a fine on it, and amend Article 2(i) of the deci-
sion in so far as it imposes on Sachsa, contrary to Article
15(2) of Regulation No 17/62 and Article 23(2) of Regu-
lation (EC) No 1/2003, a fine in excess of 10 % of its turn-
over;

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

— in the alternative, set aside Article 2(i) of the decision;

Form of order sought

— Annul the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market
(Trade
Marks and Designs) of 16 December 2005 (Case R
237/2005-2);

— order the defendant to pay the costs of this action.

Pleas in law and main arguments

Community trade mark concerned: Word Mark ‘Vorsprung durch
Technik’ for goods and services in Classes 9, 12, 14, 16, 18,
25, 28, 35, 36, 37, 38, 39, 40, 41, 42, 43 and 45 — Applica-
tion no. 3 016 292

Decision of the Examiner: Partial rejection of the application

Decision of the Board of Appeal: Partial rejection of the appeal

Pleas in law: Infringement of Article 7(1)(b) of EC Regulation
40/94, as the mark applied for is sufficiently distinct and the
contested decision does not contain any findings regarding the
relevant public.

Action brought on 23 February 2006 — Groupe Gascogne
v Commission

(Case T-72/06)

(2006/C 96/49)

Language of the case: French

— in the further alternative, amend Article 2(i) of the decision
and reduce the amount of the fine imposed jointly and
severally on Sachsa and Groupe Gascogne;

— order the Commission to pay all of

the costs of

the

proceedings.

Pleas in law and main arguments

By the present action, the applicant seeks the partial annulment
of Commission Decision C(2005) 4634 final of 30 November
2005 relating to a proceeding pursuant to Article 81 of the EC
Treaty (Case COMP/F/38.354 — Industrial bags) by which the
Commission decided that the undertakings to which that deci-
sion was addressed, which included the applicant, breached
Article 81 EC by engaging in agreements or concerted practices
in the industrial bags sector in Belgium,
the Netherlands,
Luxembourg, Germany, France and Spain. In the part of its
the Commission
decision which relates
adjudged it
to be jointly and severally liable with Sachsa
Verpackung GmbH for the breach by reason of its status as
parent company of Sachsa Verpackung. In the alternative, the
applicant seeks annulment solely of Article 2(i), which imposes
a fine on it, and, in the further alternative, the amendment of
that article so as to bring about a reduction in the fine
imposed.

to the applicant,

In support of its claims, the applicant puts forward three pleas
in law.

Parties

Applicant: Groupe Gascogne (Saint-Paul-lès-Dax, France) (repre-
sented by: C. Lazarus, lawyer)

Defendant: Commission of the European Communities

By the first plea, which is put forward as the principal plea, the
applicant submits that the Commission breached the provisions
of Article 81(1) EC by incorrectly attributing to it joint and
several liability for the practices engaged in by Sachsa and by
holding it jointly and severally liable for payment of the fine
imposed on Sachsa.

22.4.2006

EN

Official Journal of the European Union

C 96/31

By its second plea, put forward by way of alternative submis-
sion, the applicant submits that the Commission erred in law
by misconstruing the notion of
'undertaking' within the
meaning of Article 81 EC and, as a result, imposing on it a fine
calculated on the basis of the consolidated turnover of Groupe
Gascogne, whereas, according to the applicant, it ought to have
based itself on the aggregate corporate turnover of Groupe
Gascogne and Sachsa, having failed to set out reasons as to
why the other subsidiaries of Groupe Gascogne ought to be
included within ‘the undertaking’ liable in respect of the prac-
tices of Sachsa adjudged anti-competitive in the contested deci-
sion.

By its third plea, put forward as a further alternative, the appli-
cant contends that the Commission infringed the principle of
proportionality by imposing an allegedly excessive fine on
Sachsa and Groupe Gascogne jointly and severally, in particular
by failing to ensure that
there was a reasonable relation
between the penalty imposed and the actual turnover achieved
by Groupe Gascogne within the plastic bags sector.

Action brought on 27

February

2006 — Bayer

CropScience a.o. v Commission

(Case T-75/06)

(2006/C 96/50)

Language of the case: English

91/414/EEC and the withdrawal of authorisations for plant
protection products containing this substance; and

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

proceedings.

Pleas in law and main arguments

Council Directive 91/414 (2) concerning the placing of plant
protection products on the market (known as the ‘plant protec-
tion products directive’ or ‘PPPD’) provides that Member States
shall not authorise a product unless it is inscribed in Annex I
of the Directive. The applicants, who are producers of endo-
sulfan, request the annulment of the contested Decision, which
refused to include endosulfan in that Annex.

In support of their application they first invoke a number of
alleged procedural irregularities, namely: that the assessment of
the contested Decision is based on criteria other than those
specified in Directive 91/414, is incomplete and makes only
selective use of the data submitted by the applicants; that new
guidelines and criteria established by the Commission were
applied retroactively after
the applicant's notification and
submission of data; and that the Commission refused to advise
and consult with the applicants in relation to changing evalua-
tion criteria and policy.

The applicants further allege that from a substantive law view-
point the contested Decision violates Article 95(3) EC and
Article 5(1) of Directive 91/414. They consider
the
Commission failed to comply with its duty, under these provi-
sions, to assess active substances and include them in Annex I
in light of current scientific and technical knowledge and
subject only to the requirements listed in article 5.

that

Parties

Applicants: Bayer CropScience AG (Monheim am Rhein,
Germany), Makhteshim-Agan Holding BV (Amsterdam, Nether-
lands), Teko AE (Athens, Greece) and Aragonesas Agro SA
(Madrid, Spain)
[represented by: C. Mereu and K. Van
Maldegem, lawyers]

Defendant: Commission of the European Communities

They further invoke the violation of a number of general prin-
ciples of Community law, namely: the principle of proportion-
ality, the principle of legitimate expectations and legal certainty,
the duty to perform a diligent and impartial assessment, the
right of due process (right of defence and right
to a fair
hearing), the principle of excellence and independence of scien-
tific advice, the principle of equal treatment, the principle that
more general provisions must give way to a lex specialis and
finally the principle of estoppel.

Form of order sought

(1) OJ L 317, 3/12/2005 p. 25
(2) OJ L 230 , 19/08/1991 p.1

— Order

the

annulment

Decision
of
2005/864/EC (1), of 2 December 2005, concerning the
to Directive
non-inclusion of endosulfan in Annex I

Commission