Case T-66/06: Action brought on  23 February 2006  — JM Gesellschaft für industrielle Beteiligungen 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 96/26

EN

Official Journal of the European Union

22.4.2006

Form of order sought

— Primarily, annul

the Decision of

the Commission, no.
C(2005)4634, of 30 November 2005,
relating to a
proceeding under Article 81 EC, in case COMP/F/38.354 —
Industrial bags, in so far as it concerns the applicant;

— secondarily, set the amount of the fine of which the appli-
cant is held jointly and severally liable in Article 2 of the
above Decision at 0 EUR in so far as it concerns the appli-
cant;

— order the Commission to pay the costs.

Pleas in law and main arguments

By the Contested Decision the Commission found that the
applicant had infringed Article 81 EC by participating in a
complex of agreements and concerted practices in the plastic
industrial bags sector, affecting Belgium, France, Germany,
Luxembourg,
the Netherlands and Spain, consisting in the
fixing of prices and the establishment of common price calcula-
tion models, the sharing of markets and the allocation of sales
quotas, the assignment of customers, deals and orders, the
submission of concerted bids in response to certain invitations
to tender and the exchange of individualised information.

The applicant's infringement related to the conduct of another
company, Trioplast Wittenheim SA (‘TW’), which was found to
have participated in the cartel in question. Another company,
FLS Plast, of which the applicant was the holding company,
had owned shares of TW and, for most of the period for which
the applicant was found liable, TW was FLS Plast's wholly
owned subsidiary. A fine was imposed on TW, and the appli-
cant and FLS Plast were made jointly and severally liable for
part of that fine.

In support of its application, the applicant first of all contends
that the Commission did not correctly apply the test for liabi-
lity of the parent company, as it did not adduce evidence to the
effect that there existed circumstances, in respect of the appli-
cant, which could support a presumption of parental influence
on TW. The applicant also contends that,
in any case, the
Commission did not apply the correct legal test since a stricter
set of criteria is applicable in a situation such as the one in the
present case, where, according to the Commission, TW started
participating in the cartel
long before its acquisition by the
applicant's daughter company, and continued to do so after its
disposal. In any event, the applicant considers that it has estab-
lished that TW decided independently its own conduct on the
market and did not carry out instructions given to it by the
applicant.

the other groups comprised by the Decision had liability attrib-
uted to the operating subsidiary, a parent company and the
parent's parent company, as was the case with TW and the
applicant. Furthermore, even though TW had previously
belonged to another group, the Commission did not attribute
any liability for TW's participation in the cartel, on any
member of that other group. Finally, the liability attributed to
the applicant is disproportionate since the applicant was made
liable for 85.7 % of the fine imposed on TW even though it
had a shareholding in it for only 8 years out of a total of 20 in
which the latter was supposedly involved in the cartel.

The applicant also invokes the latter arguments in support of
its secondary claim, to have the fine imposed on it reduced. It
further argues that the fine imposed on it is excessive, since the
Commission failed to set a separate basic amount of the fine
for the applicant, taking into account its lack of responsibility.
It also contends that the Commission erred in law by not
taking into account certain attenuating circumstances in its
favour.

Finally, the applicant contends that the Commission committed
further errors in law by attributing liability to TW for the
period 1982 to 1988; imposing on the latter a fine which is
disproportionate, excessive and exceeds the 10 % of turnover
ceiling; and by not letting the applicant, as a secondary liable
party, benefit from the leniency granted to the principally liable
party, TW or, at least, granting an independent reduction of
fines to the applicant under the leniency notice.

Action brought on 23 February 2006 — JM Gesellschaft
für industrielle Beteiligungen v Commission

(Case T-66/06)

(2006/C 96/44)

Language of the case: German

Parties

Applicant: JM Gesellschaft für industrielle Beteiligungen mbH &
Co. KGaA (Worms, Germany) (represented by: H.-J. Hellmann,
lawyer)

The applicant also submits that attribution of liability to it is
discriminatory, disproportionate and arbitrary since none of

Defendant: Commission of the European Communities

22.4.2006

EN

Official Journal of the European Union

C 96/27

Form of order sought

The applicant claims that the Court should:

respect of RKW. Finally, the applicant submits that Article
15(2) of Regulation No 17 has also been infringed as the fine
was wrongly fixed in relation to RKW in the light of the appli-
cation of the Notice on the non-imposition or reduction of
fines.

— 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 jointly and sever-
ally on the applicant;

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

Pleas in law and main arguments

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 jointly
and severally on RKW AG Rheinische Kunststoffwerke (RKW)
and the applicant for infringement of Article 81 EC. According
to the Commission, they participated in a complex of agree-
ments and concerted practices in the industrial bags sector in
Belgium, Germany, Spain, France, Luxembourg and the Nether-
lands.

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 held the applicant
jointly and severally liable with RKW without a legal basis or
enabling act permitting it to do so.

In addition, the applicant complains that it was also held liable
for RKW's infringement. The conditions developed by the
Court of Justice for such liability were not satisfied. Further, the
applicant claims that, in holding it liable for RKW's infringe-
ment, the duty of administrative authorities to comply strictly
with the law has been infringed since 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 (1). In that
regard, the applicant also claims that the principles of equal
treatment and proportionality have been infringed.

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
in
evidence in relation to RKW was irregular. Furthermore,
view of previous administrative practice RKW was dispropor-
tionately fined. As regards the amount of the initial sum for the
gravity of the infringement, the applicant alleges that RKW 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 Commission erred in law
with regard to the assessment of the duration of the infringe-
ment and did not take mitigating circumstances into account in

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

Action brought on 20 February 2006 — Elini N.V. v OHIM

(Case T -67/06)

(2006/C 96/45)

Language in which the application was lodged: Dutch

Parties

Applicant: Elini N.V.
Cornette and S. Tilsley, lawyers)

(Antwerp, Belgium)

(represented by: F.

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

Other party to the proceedings before the Board of Appeal of
OHIM: Rolex. S.A (Geneva, Switzerland)

Form of order sought

The applicant claims that the Court should:

— review and annul

the decision of

the Fourth Board of
Appeal of the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) of 12 December 2005
(Case R-725/2004-4);

— order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Elini N.V.

Community trade mark concerned: the figurative mark ‘Elini’ for
goods in class 14 (jewellery; watches; watch straps, watch
glasses, watch chains and precious stones)

Proprietor of the mark or sign cited in the opposition proceed-
ings: Rolex S.A.