Case T-450/05: Action brought on  21 December 2005  — Automobiles Peugeot and Peugeot Nederland v Commission
Date: 2006-03-25
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), concessionaire, fine, motor vehicle industry, restriction on competition

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.

C 74/26

EN

Official Journal of the European Union

25.3.2006

The following plea in law covers the alleged insufficiency of the
grounds of
the contested decision so far as concerns the
analysis of the effects of the measures alleged by the Commis-
sion. In addition, as part of that plea, the applicants accuse the
Commission of having made errors of fact and an erroneous
assessment of
the facts and of having contradicted in the
grounds of its decision.

In support of their alternative claim for the reduction of the
fine imposed by the Commission, the applicants rely on a plea
in law alleging infringement of Article 23(2) of Regulation No
1/2003 and of the Guidelines on the setting of fines (1) in the
application of those provisions by the Commission.

(1) Guidelines on the method of setting fines imposed pursuant to
Article 15(2) of Regulation No 17 and of Article 65(5) of the EC
Treaty (OJ C 9 of 14 January 1998, p. 3).

Decision of the examiner: Refusal of the application for all the
claimed goods

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The mark is in accordance with Article 7(1)(b) of
Council Regulation No 40/94 inherently distinctive for all the
goods covered by the application and if not so, it has acquired
distinctiveness through use in accordance with Article 7(3) of
the Regulation.

Action brought on 30 December 2005 — L' Oréal/OHIM

(Case T-461/05)

(2006/C 74/50)

Action brought on 29 December 2005 — Bang & Olufsen/
OHIM

Language in which the application was lodged: English

(Case T-460/05)

(2006/C 74/49)

Language of the case: English

Parties

Parties

Applicant: L'Oréal S.A. (Paris, France) [represented by: X. Buffet
Delmas d'Autane, lawyer]

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

Other party/parties to the proceedings before the Board of Appeal:
Revlon (Suisse) S.A. (Schlieren, Switzerland)

Applicant: Bang & Olufsen AS (Struer, Denmark) [represented
by: K. Wallberg, lawyer]

Form of order sought

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

Form of order sought

— The decision taken by the First Board of Appeal of the
(Trade
Office for Harmonisation in the Internal Market
Marks and Designs) on 22 October 2005 in case No.
R0497/2005-1 be annulled and

— the defendant pay the costs.

Pleas in law and main arguments

— Annulment of the decision of the Fourth Board of Appeal
of the OHIM of 17 October 2005 regarding the appeal R
0806/2002-4 relating to Opposition Proceedings No B
trade mark Application No
214 694
1 011 014);

(Community

— Order for all costs incurred in relation to all proceedings in
this matter (in particular, the costs of the action and the
appeal) to be awarded against the OHIM.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘FLEXI TOUCH’
for goods in class 3

Community trade mark concerned: Three-dimensional mark in
form of a vertical pencil-shaped loudspeaker on a low pedestal
for goods in classes 9 and 20 — application No 3 354 371

Proprietor of the mark or sign cited in the opposition proceedings:
Revlon (Suisse) S.A.