Case T-41/06: Action brought on  6 February 2006  — Republic of Poland v Commission of the European Communities
Date: 2006-04-22
Institutions: Court of First Instance
Subjects: European Commission, Germany, Italy, Poland, action for annulment (EU), bank, economic concentration

22.4.2006

EN

Official Journal of the European Union

C 96/17

Decision of the Opposition Division: Rejection of the opposi-
tion

Pleas in law and main arguments

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Article 8(1)(b) of Regulation (EC) No 40/94 (1) has
been incorrectly applied, on the ground that there exists a like-
lihood of confusion between the opposing marks. The marks
show a high degree of similarity and the earlier mark has par-
ticular distinctive character. Article 74(1) of Regulation No 40/
94 has been breached, on the ground that the defendant Office
is in breach of its duty to examine the facts before it.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark.

The pleas in law and main arguments relied on by the applicant
are identical to those relied on in Case T-26/06 Trioplast Witten-
heim v Commission.

Action brought on 6 February 2006 — Republic of Poland
v Commission of the European Communities

(Case T-41/06)

(2006/C 96/33)

Language of the case: Polish

Action brought on 9 February 2006 — Trioplast Industrier
v Commission

(Case T-40/06)

Parties

(2006/C 96/32)

Language of the case: Swedish

Applicant: Republic of Poland (represented by: Paweł Szała-
macha, Government Agent)

Defendant: Commission of the European Communities

Parties

Form of order sought

Applicant: Trioplast
(represented by: Tommy Pettersson, lawyer)

Industrier AB (Smålandsstenar, Sweden)

The applicant claims that the Court should:

Defendant: Commission of the European Communities

Form of order sought

— declare invalid the decision of 18 October 2005 in Case
COMP/M.3894 establishing that the merger of Unicredito
Italiano SpA and Bayerische Hypo- und Vereinsbank AG is
compatible with the common market;

— order the Commission to pay the costs of the proceedings.

The applicant claims that the Court should:

Pleas in law and main arguments

— partially annul Article 1(g) of the decision in relation to the
period during which the applicant is held liable for the
infringement;

— partially annul Article 2(f) of the decision in relation to the
fine imposed which the applicant is jointly liable to pay; in
the alternative, reduce the fine;

— order the Commission to pay the costs.

The applicant seeks a declaration that the decision of the Euro-
pean Commission of 18 October 2005 in case COMP/M.3894
recognising the merger of the banks Unicredito Italiano SpA
(UCI) and Bayerische Hypo- und Vereinsbank AG (HVB) as
being compatible with the common market is invalid. Each of
those banks has holdings in banking institutions in Poland and,
according to the assertions made by the applicant, the effect of
the proposed concentration will be the assumption of control
by UCI over HBV's holding within the Polish banking market.

C 96/18

EN

Official Journal of the European Union

22.4.2006

In support of its action, the applicant raises the following heads
of complaint:

— breach of Article 2(1) of

the Regulation on concentra-
tions (1) by reason of what the applicant considers to be the
inappropriate appraisal of the proposed concentration,
in
that the Commission failed to take account of the history of
the banking sector in Poland, the large amount of foreign
investment and the reasons why the Polish Government
introduced limitations on investments in the event of the
privatisation of State banks. The applicant further submits
that the Commission breached Article 2(1) of the Regu-
lation inasmuch as, when concluding its appraisal of the
compatibility of
the proposed concentration with the
common market, it failed to take account of the existence
and effects of Article 3(9) of the privatisation agreement, (2)
which,
in the view of the applicant, amounts to a legal
barrier to market entry within the terms of Article 2(1)(b)
of the Regulation on concentrations. The applicant also
contends that the Commission adopted an inappropriate
evaluation of concentrations on the Polish banking market
and also erred in its appraisal of the effect which the
proposed concentration would have on competition within
the market for investment funds and a number of specific
markets within the Polish banking sector;

— breach of Article 6(1) of the Regulation on concentrations,
inasmuch as the proposed concentration ought, according
to the applicant, to have given rise to serious doubts on the
Commission's part as to its compatibility with the common
market and should have led to the initiation of proceedings
or the second phase of the investigation as to whether the
proposed operation comes within the scope of the Regu-
lation on concentrations;

— breach of Article 11 of the Regulation on concentrations,
breach of Article 5 of the implementing regulation (3) and
infringement of the principle of fair and proper administra-
tion; the applicant takes the view that the notification of
the concentration, as indicated by the parties, was incom-
plete inasmuch as it did not contain any information on the
matter of the conditions of the privatisation agreement, in
particular Article 3 thereof, and as such should not at all
have been taken into consideration by the Commission;

— breach of the duty to cooperate resulting from Article 10 of
the Treaty establishing the European Community by reason
of the failure, before the decision was adopted, to take into
consideration the legitimate interests of the Republic of
Poland, the protection of which is provided for in Article
21(4) of the Regulation on concentrations; in the view of
the applicant, the Commission was under an obligation,
the decision recognising the
prior
concentration as being compatible with the common
market, to take action for the purpose of obtaining full
information on any legitimate interests of
the Member
States, a fortiori as it was possible for the Commission,
the
when monitoring the Polish banking market over
period prior to the Republic of Poland's accession to the
European Union, to familiarise itself with the structure of
that market, and the Commission must have been aware of

to the adoption of

the existence of a legitimate public interest on the part of
the Polish Government in guaranteeing the application and
implementation of the strategies of de-monopolisation and
privatisation;

— breach of Article 253 EC and of the obligation to provide
specific reasons for a decision, a failure which, in the view
of the applicant, renders more difficult the reconstruction
and monitoring of the correctness of the process by which
the law is applied by the Commission.

(1) Council Regulation (EEC) No 4064/89 of 21 December 1989 on
the control of concentrations between undertakings (OJ 1989 L 395,
p. 1).

(2) Agreement on the sale of shares in Bank Polska Kasa Opieki Spółka
Akcyjna – Grupa Pekao S.A. entered into on 23 June 1999 between
the State Treasury of the Republic of Poland and Unicredito Italiano
SpA and Allianz AG.

(3) Commission Regulation (EC) No 802/2004 of 7 April 2004 imple-
menting Council Regulation (EC) No 139/2004 on the control of
concentrations between undertakings (OJ 2004 L 133, p. 1).

Action brought on 21 February 2006 — Fardem Packaging
v Commission

(Case T-51/06)

(2006/C 96/34)

Language of the case: Dutch

Parties

Applicant: Fardem Packaging B.V. (Edam, Netherlands) (repre-
sented by: F.J. Leeflang, lawyer)

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

Fardem;

— reduce the fine imposed on Fardem;

— order the Commission to pay the costs of

the present

proceedings.