Case T-36/06: Action brought on  26 January 2006  — Bundesverband deutsche Banken e.V. Berlin v Commission of the European Communities
Date: 2006-04-22
Institutions: Court of First Instance
Subjects: European Commission, Germany, State aid, action for annulment (EU), bank, control of State aid, investment

22.4.2006

EN

Official Journal of the European Union

C 96/15

Furthermore, the applicant argues, with regard to the gravity of
the infringement, that, in comparison with the other companies
involved, the Commission has imposed a basic amount which
is too high by reference to the applicant's market share.

In addition, in support of its claim, the applicant submits that
the Commission's method of calculation for determination of
the fine was incorrect and that another method should have
been used, by which account should have been taken of the
fact that the applicant's infringement consists of three distinct
periods of
time, since the applicant was owned by three
different owners (St. Gobain, FLS and Trioplast Industrier) over
the time during which the infringement occurred. According to
the applicant, the Commission's method gives the result that
FLS and Trioplast Industrier's overall joint and several liability
exceeds the total fine imposed on the applicant and that in
practice FLS and Trioplast Industrier are held jointly and sever-
ally liable also to pay for the period when neither company
owned the applicant.

Furthermore, the applicant takes the view that the Commission
should have taken account of the fact that there are attenuating
circumstances with regard to the applicant's infringement since
the applicant was throughout a minor and passive participant
in the infringement. Moreover, according to the applicant, the
Commission did not take account of the 10 % rule in Regu-
lation No 1/2003, (1) and the Commission should have granted
the applicant leniency to a greater degree than was the case in
the contested decision.

Finally, the applicant claims that the Commission has failed to
apply the principles of legal certainty and proportionality.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the
implementation of the rules on competition laid down in Articles
81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1).

Other party to the proceedings before the Board of Appeal: Elia
Canelo Gutierrez (Talavera de la Reina, Spain)

Form of order sought

— annul the decision of the Second Board of Appeal of the
OHIM of 23 November 2005 (Case R 36/2005-2) relating
to Opposition Proceedings No. B 605 461, notification of
which was received on 30 November 2005;

— order the OHIM to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: Figurative mark ‘J&B’ for goods
and services in classes 14, 18, 21, 25, 33 and 43 (Community
trade mark application No 2 696 383)

Proprietor of the mark or sign cited in the opposition proceed-
ings: Elia Canelo Gutierrez

Mark or sign cited: International figurative trade mark ‘JOB’ for
goods in class 33 (registration No 275 247)

Decision of the Opposition Division: Rejects opposition

Decision of the Board of Appeal: Annuls the contested decision
and remits the case to the Opposition Division for further
prosecution

Pleas in law: Violation of Articles 8(1)(b), 8(2)(iii) and 73 of
Council Regulation (EC) No 40/94 and of procedural require-
ments, as contained in various rules of the Commission Regu-
lation (EC) No 2868/95.

Action brought on 27 January 2006 — Justerini & Brooks
Limited v OHIM

(Case T-32/06)

(2006/C 96/29)

Language in which the application was lodged: English

Action brought on 26 January 2006 — Bundesverband
deutsche Banken e.V. Berlin v Commission of the Euro-
pean Communities

(Case T-36/06)

(2006/C 96/30)

Language of the case: German

Parties

Applicant(s):
Kingdom) [represented by: B. Cordery, Solicitor]

Justerini & Brooks Limited (London, United

Parties

Applicant:
(Germany)
lawyers)

Bundesverband
Berlin
(represented by: H.-J. Niemeyer and K.-S. Scholz,

deutsche

Banken

e.V.

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

Defendant: Commission of the European Communities

C 96/16

EN

Official Journal of the European Union

22.4.2006

Form of order sought

The applicant claims that the Court should:

Action brought on 7 February 2006 — MEGGLE Aktienge-
sellschaft v Office for Harmonisation in the Internal
Market (Trade Marks and Designs)

— annul

the defendant's decision of 6 September 2005
in Case N 248/04 — Landesbank

[C(2005)3232 Final]
Hessen-Thüringen;

— order the defendant to pay costs.

(Case T-37/06)

(2006/C 96/31)

Language of the case: German

Pleas in law and main arguments

Parties

The applicant challenges Commission Decision C(2005)3232
Final of 6 September 2005, in which the Commission deter-
mined that the notified transfer of the special Hessian Invest-
ment Fund as silent partnership participation to Landesbank
Hessen-Thüringen (‘Helaba’) does not constitute state aid.

Applicant: MEGGLE Aktiengesellschaft
Germany) (represented by: T. Rabb, lawyer)

(Wasserburg a.

Inn,

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

In support of its application, the applicant advances four pleas.

Other party to the proceedings before the Board of Appeal:
Clover Corporation Limited (North Sydney, Australia)

First, the applicant contends that the Commission has breached
the duty to state reasons under Article 253 EC.

Form of order sought

Second, the applicant supports its claim in contending that the
defendant, by confirming the appropriateness of the agreed
remuneration for the transfer to Helaba, has breached the prin-
ciple of a private investor in a market economy and, thereby,
Article 87(1) EC.

further claims that

the Commission wrongly
The applicant
deducted the refinancing costs because of the lack of liquidity
of the transfer to Helaba. The applicant contends that, for this
reason, the Commission has breached the principle of a private
investor in a market economy and, thereby, Article 87(1) EC.

Finally, the applicant submits that the right to a fair hearing
has been infringed, on the ground that the Commission failed
to open a formal investigation procedure under Article 88(2)
EC and Article 6 of Regulation (EC) No 659/1999 in respect of
the transfer to Helaba (1).

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article 93 of the EC
Treaty.

The applicant claims that the Court should:

— annul the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market
(Trade
Marks and Designs) of 22 November 2005 and the opposi-
tion decision of the Opposition Division of the Office with
competence for trade marks of 30 September 2004;

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant
Limited

for Community trade mark: Clover Corporation

Community trade mark sought: Figurative mark ‘HiQ with clover-
leaf’ for goods in Classes 5, 29 and 30 (No 2 171 114)

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

Mark or sign cited in opposition: the German figurative mark
‘Cloverleaf’ for goods in Classes 1, 3, 5, 29, 30, 31, 32 and 33
(No 980 458) and the German figurative mark ‘Cloverleaf’ for
goods in Classes 1, 3, 5, 29, 30, 31, 32, 33 (No 39 652 600)