Case T-85/06: Action brought on  8 March 2006  — General Química and Others v Commission of the European Communities
Date: 2006-06-03
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), chemical product, economic concentration, fine, liability, rubber industry

3.6.2006

EN

Official Journal of the European Union

C 131/41

Operative part of the order

1. There is no need to adjudicate on the application for interim

measures.

2. In the interlocutory proceedings, the defendant shall bear her own

costs and pay half the costs incurred by the applicant.

Pleas in law: Infringement of Articles 8(5) and 43(3) of Council
Regulation No 40/94. The applicant pleads
that genuine
commercial use of
the mark cited in opposition was not
proved, while he also contests the Board of Appeal's assessment
that the mark cited in opposition has a reputation.

Action brought on 8 March 2006 — General Química and
Others v Commission of the European Communities

Action brought on 11 January 2006 — Dimitrios Gramma-
tikopoulos v OHIM

(Case T-20/06)

(2006/C 131/77)

Language in which the application was lodged: Greek

(Case T-85/06)

(2006/C 131/78)

Language of the case: Spanish

Parties

Parties

Applicant: Dimitrios Grammatikopoulos
Konstantinos Taoulas, lawyer)

(represented

by:

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

Applicants: General Química S.A.
(Lantarón, Álava, Spain),
Repsol Química S.A. and Repsol YPF S.A. (Madrid) (represented
by: J.M. Jiménez Laiglesia and J. Jiménez Laiglesia, lawyers)

Defendant: Commission of the European Communities

Other party to the proceedings before the Board of Appeal of OHIM:
National Academy of Recording Arts and Sciences (Santa
Monica, USA)

Form of order sought

Form of order sought

— Annul and set aside the decision of 18 August 2005 of the
Fourth Board of Appeal of OHIM in Case R 1062/2000-4
and grant the applicant's application for registration of the
word mark GRAMMY as a Community mark outright, as
filed, or — in the alternative — in amended form as
suggested in the present application to the Court.

Pleas in law and main arguments

Applicant for a Community trade mark: Dimitrios Grammati-
kopoulos.

— Annul Articles 1(g), 1(h) and 2(d) of the decision in so far
as it declares Repson Química and Repsol YPF to be jointly
and severally liable for an infringement of Article 81(1) EC;

alternatively, annul the declaration of joint and several liabi-
lity in respect of Repsol YPF;

— annul Article 2(d) of the decision in so far as it fixes the

amount of the fine at EUR 3.38 million;

alternatively, reduce the amount of the fine in an appro-
priate manner;

— order the European Commission to pay the costs.

Community trade mark concerned: Word mark GRAMMY for
goods in Classes 25 and 28 — Application No 19315.

Pleas in law and main arguments

Proprietor of the mark or sign cited in the opposition proceed-
ings: National Academy of Recording Arts and Sciences.

Mark or sign cited in opposition: National mark GRAMMY for
goods in Classes 9, 35, 41 and 42.

Decision of the Opposition Division: Opposition rejected.

Decision of the Board of Appeal: Appeal upheld. Application for
registration rejected.

The action is brought against Commission Decision C(2005)
5592 final of 21 December 2005 in Case COMP/F/38.443 —
Chemicals for the rubber industry. In the contested decision the
Commission declared that the applicant, among other under-
takings, had infringed Article 81(1) EC and Article 53 of the
EEA Agreement by participating, between 1999-2000,
in a
cartel and concerted practices consisting in price-fixing and the
exchange of confidential information in the rubber chemicals
sector in the EEA.
those infringements the
Commission imposed a fine jointly and severally on the appli-
cants.

In respect of

C 131/42

EN

Official Journal of the European Union

3.6.2006

In support of their claims the applicants rely on the following
grounds:

— incorrect assessment by the Commission,

in declaring
Repsol YPF and Repsol Química jointly liable with General
Química and, alternatively, incorrect assessment and failure
to state reasons for the declaration of joint and several liabi-
lity in respect of Repsol YPF;

— incorrect assessment, failure to state reasons and infringe-
ment of the principles of proportionality and equal treat-
ment in the calculation of the fine;

— incorrect assessment and defective reasoning in the applica-
tion of the Commission notice on immunity from fines and
reduction of fines in cartel cases (1).

(1) OJ 2002 C 45, p. 3.

Action brought on 15 March 2006 — Lebard v Commis-
sion

(Case T-89/06)

(2006/C 131/79)

Language of the case: French

Parties

Applicant: Daniel Lebard (Brussels, Belgium) (represented by: de
Guillenschmidt, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— annul the decision set out in the letter of 16 January 2006
addressed to Mr Lebard, dismissing the application for with-
drawal of Decision IV/M.1517 in the name of the Commis-
sion;

— annul, as a consequence, the Commission's decision to close
the file on the concentrations between Rhodia and Albright
& Wilson and de Hoechst and Rhône-Poulenc to the extent
that these transactions are interlinked;

— as a result, declare that Decision IV/M.1378 of 2004 is also

void;

— order the Commission to pay Mr Lebard the sum of one
euro for the harm caused to him, to have the judgment of
the Court of First Instance containing the order published
at its own cost in newspapers chosen by the applicant and
to pay all the costs.

Pleas in law and main arguments

By decision No IV/M.1517 of
the Commission
authorised a concentration under which Rhodia SA was to take

July 1999,

full control of the company Albright & Wilson, of which the
applicant was chairman between 28 July 1999 and 14 October
1999. By Decision No IV/M.1378 of 9 August 1999,
the
Commission also authorised the concentration between the
undertakings Hoechst and Rhône-Poulenc, the latter having a
controlling interest in Rhodia of 67.35 %. Certain commitments
relating to Rhodia (sale of Rhône-Poulenc's interest in Rhodia,
maintenance of independent management of the two undertak-
ings) were entered into by Rhône-Poulenc and attached to Deci-
sion No IV/M.1378 to ensure that the transactions would not
have an adverse effect on competition. The applicant sent the
Commission several letters informing it that the commitments
entered into in respect of Case IV/M.1378 had allegedly not
been complied with and requesting that Decision No IV/
M.1517 be withdrawn. In its reply of 7 October 2005, the
Commission stated that it did not envisage bringing any action
on the basis of the facts brought to its knowledge by the appli-
cant and that it had decided to close the file. In response to the
applicant's letter, the Cabinet of the President of the Commis-
sion sent
the applicant a letter dated 16 January 2006
confirming its earlier position as that set out in the letter of 7
October 2005, namely the rejection of the application to with-
draw the Commission's decision in Case IV/M.1517. The
present action for annulment is directed against the alleged
decision contained in the Commission's letter of 16 January
2006.

In support of its action, the applicant puts forward several
pleas.

First, for the purposes of admissibility of his action, the appli-
cant purports to have a direct interest in bringing proceedings
as recipient of the contested letter causing him direct and indi-
vidual harm. He further contends that the letter of 16 January
2006, which is the subject of the present action, cannot be
considered to be an act that simply confirms the letter of 7
October 2005 on the ground that a new element has since
arisen which is likely to bring about a substantial change in the
circumstances and conditions governing the adoption of the
former measure for the purposes of Community case-law. The
applicant
thereby refers to a letter from Mrs Kroes of 12
January 2006 addressed to the Members of the European Parlia-
ment concerning the concentrations in question.

Second, the applicant puts forward pleas in support of the
forms of order sought on the merits. In the first, alleging a
breach of the substantive and procedural rules in the field of
competition, he criticises the Commission for not re-examining
the file and not using its power to withdraw its earlier decision.
In the second, he alleges that the Commission has misused its
powers by failing to maintain tight control over the concentra-
tions, authorised in advance, in the course of their implementa-
tion.

Finally, the applicant puts forward a plea based on judicial
protection which, he contends,
is owed to the parties to a
concentration and in particular to the directors of an under-
taking involved in a concentration.