Case T-447/05: Action brought on  22 December 2005  — Plantations de Mbanga v Commission
Date: 2006-03-25
Institutions: Court of First Instance
Subjects: ACP countries, European Commission, action for annulment (EU), import, import licence, originating product, tariff quota, tropical fruit

C 74/24

EN

Official Journal of the European Union

25.3.2006

Action brought on 16 December 2005 — El Corte Inglés
S.A. v OHIM

Pleas in law: incorrect application of Article 8(1)(b) of Regu-
lation No 40/94 on the Community trade mark.

(Case T-443/05)

(2006/C 74/46)

Language in which the application was lodged: Spanish

Action brought on 22 December 2005 — Plantations de
Mbanga v Commission

Parties

Applicant: El Corte Inglés S.A. (Madrid) (represented by: Juan
Luis Rivas Zurdo, lawyer)

(Case T-447/05)

(2006/C 74/47)

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

Language of the case: French

Other party to the proceedings before the Board of Appeal of OHIM:
Juan Bolaños Sabri

Parties

Form of order sought

The applicant claims that the Court should:

Applicant: Société des plantations de Mbanga (SPM) SA, estab-
lished in Douala, Cameroon, represented by: P. Soler Couteaux
and S. Cahn, lawyers

— annul the decision of the First Board of Appeal, of 21
September 2005, in Case R 1191/2004-1, in so far as, by
upholding the application by the applicant for the Com-
munity mark, that decision provides the basis for the future
grant of Community trade mark No 2.456.242 ‘PRAÑAM
DISEÑO ORIGINAL JUAN BOLAÑOS’, in Class 25;

— refuse registration of

‘PRAÑAM DISEÑO ORIGINAL

the Community trade mark No
JUAN

2.456.242
BOLAÑOS’, Class 25;

— order the party or parties opposing this application to pay

the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Juan Bolaños Sabri.

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

— annul Commission Regulation (EC) No 2015/2005 of 9
December 2005 on imports during January and February
2006 of bananas originating in ACP countries under the
tariff quota opened by Council Regulation (EC) No
1964/2005 on the tariff rates for bananas;

— order the Commission and the Council to pay all the costs

and expenses.

figurative mark ‘PIRAÑAM
Community trade mark concerned:
diseño original Juan Bolaños’ (Application No 2.456.242) for
goods in Classes 16, 21 and 25.

Pleas in law and main arguments

Proprietor of the mark or sign cited in the opposition proceedings: the
applicant.

Mark or sign cited in opposition: Spanish word marks ‘PIRANHA’
for goods in Classes 25 (No 790.520) and 18 (No 2.116.007).

Decision of the Opposition Division: the opposition upheld in
part, the application for registration for goods in Class 25
being rejected.

Decision of
annulled and the opposition set aside in its entirety.

the Board of Appeal:

the decision appealed was

In the context of the amendments to the specific regime for
the
trade quotas with non-Member States forming part of
measures of market organisation in the banana sector, Council
Regulation No 1964/2005 of 29 November 2005 (1), among
other things, conferred on the Commission the power to enact
the measures necessary to implement that regulation, as well as
transitional measures relating to the management of the tariff
quota for bananas originating in ACP countries. In that context,
the Commission maintained in its Regulation No 2015/2005
of 9 December 2005 (2),
January and
February 2006, the previous system of granting import licences
on the basis of historic references (3), as it was initially laid
down by Regulation No 896/2001. The annulment of Regu-
lation No 2015/2005 is sought in this action.

for the months of

25.3.2006

EN

Official Journal of the European Union

C 74/25

In support of its action, the applicant claims that by estab-
lishing, in its Articles 3 and 4, a system of allocation of import
licences based on historic references and on the introduction of
non-traditional operators, Regulation No 2015/2005 infringes:

— the contractual framework of the banana market;

Action brought on 21 December 2005 — Automobiles
Peugeot and Peugeot Nederland v Commission

(Case T-450/05)

(2006/C 74/48)

Language of the case: French

— the philosophy and principles enshrined in the Community
provisions in respect of common agricultural policy and
common organisation of the banana markets and the provi-
sions themselves of the Community legislation in question;

Parties

— the principles enshrined in Articles 81 EC and 82 EC, in
that it enables historic operators to abuse collectively the
dominant position which, according to the applicant,
is
conferred on them by the regulatory provisions and in that
it also encourages other anti-competitive practices on the
Community banana market;

— the principles enshrined in Article 87 EC, in that its effect is
to confer a substantial financial advantage selectively on
certain historically important traditional importers, who are
able to profit from the resale of licences wrongly obtained
gratuitously;

— the principle of proportionality in that it does not permit
the creation and development of the businesses of credible
and viable non-traditional importers, who can survive only
by relying on a traditional importer; in addition, the appli-
the regulation, annulment of which is
cant claims that
sought, no longer enables ACP banana producers to take
advantage in an equitable manner of
the preference
accorded to ACP bananas, since the system benefits exces-
sively certain historically important traditional importers;

— the principle of non-discrimination in that it applies appar-
ently equitable treatment to all traditional ACP importers,
favours unduly certain historically
whilst
important traditional importers.

in reality,

it

Finally, the applicant also relies, in support of its claims, on
breach of the principles of legitimate expectations and of the
freedom to carry on business.

(1) Regulation (EC) No 1964/2005 of 29 November 2005 on the tariff

rates for bananas (OJ L 316 of 2.12.05).

(2) Commission Regulation (EC) No 2015/2005 of 9 December 2005
on imports during January and February 2006 of bananas origin-
ating in ACP countries under the tariff quota opened by Council
Regulation (EC) No 1964/2005 on the tariff rates for bananas (OJ
L 324, p. 5).

(3) Which is challenged by the applicant in Case T-128/05 pending

before the Court of First Instance.

Applicants: Automobiles Peugeot SA (Paris, France) and Peugeot
Nederland NV (Utrecht, Netherlands) (represented by: O. d'Or-
messon and N. Zacharie, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

— annul the Decision in the entirety of its operative part and

the grounds supporrting it;

— alternatively, vary Article 3 of the Decision and the grounds
supporting it by reducing the fine of EUR 49.5 million;

— order the Commission to pay the costs.

Pleas in law and main arguments

In this action the applicants seek the annulment of Commission
Decision C(2005)3683 final of 5 October 2005 adopted as
part of a procedure under Article 81 of the EC Treaty (Cases
36.623, 36.820 and 37.275 — SEP and Others/Automobiles
Peugeot SA) by which the Commission found the practices
applied by them intended to restrict exports of automobiles to
be anti-competitive. The contested decision covers, in particu-
lar, the individual measures adopted by the applicants with
regard to dealers: bonus system for dealers, policy restricting
promotional campaigns,
limited supplying of dealers, direct
instructions. The applicants claim, in addition, alternatively, the
reduction of the fine imposed by the Commission.

In support of their claims, the applicants submit that in its deci-
sion the Commission infringed the provisions of Article 81(1)
of the EC Treaty, in that it found that the measures adopted by
the applicants could be regarded as an ‘agreement’ within the
meaning of that article.

In the alternative, they rely on pleas in law alleging errors of
fact, erroneous assessment of the facts and error of law in that
the Commission held that the system of payment of dealers
had an anti-competitive object within the meaning of Article
81(1) of the EC Treaty. Moreover, the applicants call in ques-
tion the determination of the length of the infringement made
the
by the Commission in the contested decision in that
Commission made an error of fact and an erroneous assess-
ment of the facts which led it, according to the applicants, to
contradictions in the grounds of its decision.