Case T-145/06: Action brought on  18 May 2006  — Omya v Commission
Date: 2006-07-15
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), chemical industry, economic concentration, exchange of information, merger control

C 165/32

EN

Official Journal of the European Union

15.7.2006

Action brought on 8 May 2006 — Philip Morris Products
v OHIM (Shape of a packet of cigarettes)

(Case T-140/06)

(2006/C 165/63)

Language in which the appeal was lodged: French

Parties

Form of order sought

— Annul the Decision adopted by the European Commission
in case COMP/M.3796 — Omya/J.M.

on 8 March 2006,
Huber PCC;

— declare that the concentration forming the subject matter of
case COMP/M.3796 — Omya/J.M. Huber PCC is deemed to
have been declared compatible with the common market;
and

— order the Commission to pay the costs.

Applicant: Philip Morris Products SA (Neuchâtel, Switzerland)
(represented by T. van Innis and C.S. Moreau, lawyers)

Pleas in law and main arguments

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

Form of order sought

— principally, annulment of the contested decision and an

order that OHIM bear the costs;

— in the alternative, appointment of an expert or a board of
experts entrusted with the tasks proposed by the applicant
and order that OHIM will be required to advance the costs
incurred in the performance of those tasks.

Pleas in law and main arguments

Community trade mark concerned: Three-dimensional trade mark
representing a packet of cigarettes for goods in Class 34 (appli-
cation No. 2 681 351)

Decision of the Examiner: registration refused

Decision of the Board of Appeal: appeal rejected

Pleas in law: Infringement of Article 7(1)(b) of Council Regu-
lation No 40/94. The applicant contends that the trade mark
has a sufficiently distinctive character and cannot be said to be
common to all the goods in question.

Action brought on 18 May 2006 — Omya v Commission

(Case T-145/06)

(2006/C 165/64)

Language of the case: English

Parties

The applicant seeks annulment of the Commission's Decision C
(2006)795 of 8 March 2006 in merger case COMP/M.3796
according to which the applicant pursuant to Article 11(3) of
the EC Merger Regulation (1)
requested to supply the
Commission with correct and complete information concerning
the applicant's take over of the precipitated calcium carbonate
business from J.M. Huber Corporation (‘the contested decision’).
As a result of the contested decision, the merger timetable was
suspended prolonging the deadline for a final decision on the
notified concentration from 31 March 2006 to 28 June 2006.

is

The Commission states in the contested decision that,
in
response to an earlier information request, the applicant had
provided at least in part incorrect information. The applicant
claims that this stands in contradiction to a previous letter
from the Commission in which the Commission acknowledged
that the complete information had been provided.

In support of its application, the applicant invokes an infringe-
ment of Article 11(1) and (3) of the EC Merger Regulation
because (i) the information requested by the contested decision
was not necessary for the assessment of the concentration, (ii)
the requested information had been provided in full earlier, and
(iii) contrary to the principle of legal certainty, the Commission
did not act without delay.

further submits that

The applicant
the contested decision
constitutes a misuse of the powers of the Commission under
Article 11(3) of the EC Merger Regulation as the Commission's
main goal in adopting the contested decision, according to the
applicant, was to obtain an extension of the time limits under
the EC Merger Regulation, rather than the collection of neces-
sary information.

Finally, the applicant alleges that the contested decision is in
breach of the legitimate expectation of the applicant that it had
discharged its obligation to provide the requested information
and that
the deadline for a final decision on the notified
concentration was 31 March 2006. The applicant states that
this expectation arose from the Commission's previous letter in
which it acknowledged that the complete information had been
provided and from the Commission's subsequent conduct.

Applicant: Omya AG (Oftringen, Switzerland) (represented by:
C. Ahlborn, C. Berg, Solicitors, C. Pinto Correira, lawyer)

Defendant: Commission of the European Communities

(1) Council Regulation (EC) No 139/2004 of 20 January 2004 on the
control of concentrations between undertakings (the EC Merger
Regulation) (OJ 2004 L 24, p. 1).