Case T-157/06: Action brought on 9 June 2006 — Italian Republic v Commission
Date: 2006-08-12
Institutions: Court of First Instance
Subjects: European Commission, Italy, Sicily, action for annulment (EU), advance payment, aid system, operational programme, structural expenditure

C 190/24

EN

Official Journal of the European Union

12.8.2006

Mark or sign cited in opposition: National and international
word and figurative marks ‘MARIE CLAIRE’
for goods and
services in Classes 1, 3, 14, 16, 18, 20-22, 24-28, 41 and 42.

In 2001 the Commission received a complaint denouncing an
abuse of a dominant position on the part of the applicants
preventing the complainant's access to the market.

Decision of the Opposition Division: Opposition dismissed.

Decision of the Board of Appeal: Opposition Division decision
annulled and opposition upheld.

Pleas in law: Infringement of Article 8(1)(b) and 8(5) of Regu-
lation (EC) No 40/94.

By the contested decision, the Commission concluded that the
applicants infringed Article 82 EC and Article 54 of the EEA
Agreement
in the period 1998-2002 by implementing an
exclusionary strategy in the national reverse vending machines
markets in Austria, Germany, the Netherlands, Norway and
Sweden, involving exclusivity agreements, individualised quan-
tity
rebate
schemes. The Commission imposed on the applicants a fine of
24 million EUR.

commitments

individualised

retroactive

and

Action brought on 14 June 2006 — Tomra Systems and
Others v Commission

(Case T-155/06)

(2006/C 190/43)

Language of the case: English

Parties

In support of their application, the applicants submit that the
Commission:

— used manifestly incorrect and unreliable evidence to prove
that the group designed a strategy to foreclose competition
and implemented that strategy by 49 agreements with its
customers between 1998 and 2002;

— committed manifest errors on its assessment on whether
the agreements were capable of
foreclosing competition
and failure to state reasons, and on whether these agree-
ment actually foreclosed competition;

— committed a manifest error in law by holding exclusivity
agreements, individualised quantity commitments and indi-
vidualised retroactive rebates unlawful per se under Article
82 EC;

Applicants: Tomra Systems ASA (Asker, Norway), Tomra
Europe AS (Asker, Norway), Tomra Systems BV (Apeldoorn,
Netherlands), Tomra Systems GmbH (Hilden, Germany), Tomra
Butikksystemer AS (Asker, Norway), Tomra Systems AB
(Sollentuna, Sweden), Tomra Leergutsysteme GmbH (Vienna,
Austria) (represented by: A. Ryan, Solicitor, J. Midthjell, lawyer)

— committed a manifest error in concluding that non-binding
quantity commitments can infringe Article 82 EC; and

— breached the principles of proportionality and non-discrimi-
nation when it imposed the EUR 24 million fine on the
applicants.

Defendant: Commission of the European Communities

Form of order sought

— Annul

Commission Decision

COMP/E-1/38.113 —

Prokent/Tomra of 29 March 2006 in its entirety; and

— order the defendant to pay the costs of the proceedings,
including the costs incurred by the applicants to post a
bank guarantee for its obligation to pay the fine.

— In the alternative, annul or reduce substantially the amount
of the fine imposed by Article 2 of the abovementioned
decision; and

— order the defendant to pay the costs of the proceedings,
including the costs incurred by the applicants to post a
bank guarantee for its obligation to pay the fine.

Action brought on 9 June 2006 — Italian Republic v
Commission

(Case T-157/06)

(2006/C 190/44)

Language of the case: Italian

Pleas in law and main arguments

The applicants are part of the Tomra group, which is active in
the area of collecting used beverage containers mainly through
the supply of reverse vending machines (RVMs) and related
products and services.

Applicant: Italian Republic (represented by: Paolo Gentili, Avvo-
cato dello Stato)

Defendant: Commission of the European Communities

Parties

12.8.2006

EN

Official Journal of the European Union

C 190/25

Form of order sought

Decision of the examiner: Refusal of the application

— Annul the European Commission's Memorandum No 2984
of 31 March 2006 concerning the PEP Sicilia Programme
(claim for payment No 2005 0601) containing a request to
‘comply with the conditions set out
in Commissioner
Barnier's letter of 29 July 2003 as to the eligibility of
payments on account made in the contex of aid schemes’,
together with all connected and prior acts.

— Order the defendant to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments are similar to those relied
on in Case T-345/04 Italian Republic v Commission. (1)

(1) OJ C 262, 23.10.2004, p. 55.

Decision of the Board of Appeal: Partial dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council
Regulation No 40/94 and failure to take prior national registra-
tions into account.

Action brought on 19 June 2006 — Estancia Piedra v
OHIM — Franciscan Vineyards (ESTANCIA PIEDRA)

(Case T-159/06)

(2006/C 190/46)

Language in which the application was lodged: English

Parties

Action brought on 20 June 2006 — Adobe v OHIM (FLEX)

Applicant: Estancia Piedra SL (Toro, Spain) (represented by: B.
Cordery, Solicitor)

(Case T-158/06)

(2006/C 190/45)

Language of the case: English

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

Other party to the proceedings before the Board of Appeal: Fran-
ciscan Vineyards Inc. (St. Helena, USA)

Parties

Form of order sought

Applicant: Adobe Systems Inc. (San Jose, USA) (represented by:
M. Graf, lawyer)

— Annul the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market (OHIM) of
28 March 2006 (Case R 363/2005-2);

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

— order OHIM to pay the costs.

Form of order sought

— Annul the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market
(Trade
Marks and Designs) of 11 April 2006 in Case R
1430/2005-2 Adobe Systems Incorporated v OHIM (Flex)
insofar as it dismissed the appeal for other goods than
‘computer hardware; computer peripherals and data proces-
sing equipment’ in class 9 and the services applied for of
class 42.

— Order the Office to bear its own costs and to pay those of

the applicant.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘FLEX’
for
goods and services in classes 9, 38 and 42 — application No
3 795 011

Pleas in law and main arguments

Registered Community trade mark subject of the application for a
declaration of invalidity: The figurative mark ‘ESTANCIA PIEDRA’
for services in class 35 (information and consultancy services in
relation to retailing via worldwide computer networks; import-
export of wines) — Community trade mark No 2 127 868

Proprietor of the Community trade mark: The applicant

Party requesting the declaration of invalidity of the Community trade
mark: Franciscan Vineyards Inc.

Trade mark right of the party requesting the declaration of invalidity:
The Community word mark ‘ESTANCIA’ for products in classes
29, 30 and 33 (meat, fish, coffee, tea, alcoholic beverages …)

Decision of the Cancellation Division: Declaration of invalidity of
the Community trade mark

Decision of the Board of Appeal: Dismissal of the appeal