Case T-275/06: Action brought on 4 October 2006 — Omya v Commission
Date: 2006-12-02
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), chemical industry, competition, economic concentration, merger control

2.12.2006

EN

Official Journal of the European Union

C 294/59

Pleas in law and main arguments

Action brought on 4 October 2006 — Omya v Commis-
sion

This action is brought against the decision of the Commission
of 12 April 2006 by which the defendant institution accepted
the commitments offered by REPSOL CPP in accordance with
Article 9(1) of Council Regulation (EC) No 1/2003 of 16
December 2002 on the implementation of the rules on compe-
tition laid down in Articles 81 and 82 of the Treaty (1).

That decision was made in a proceeding initiated following the
application by REPSOL CPP for negative clearance or, failing
that, an individual exemption in respect of the standard agree-
ments and/or contracts by means of which it carried out its
fuel distribution activities for motor vehicles through service
stations in Spain.

Parties

(Case T-275/06)

(2006/C 294/119)

Language of the case: English

In the offer of commitments accepted by the Commission,
REPSOL CPP undertook,
to increase the annual
inter alia,
number of service stations which may change supplier, for
which it undertook to offer the bare owners/operators of the
service stations the possibility of recovery of the right in rem
to the usufruct or over the buildings subject, however,
to
compliance with a series of conditions by the operator.

In support of its claims, the applicant, occupier-operator of a
service station which had concluded a supply contract with
REPSOL CPP, argues:

(a) that REPSOL CPP's contracts with the service stations
infringed and infringe the time-limits laid down by Com-
munity provisions for non-compete clauses. In fact, prior to
the offer of commitments on the part of REPSOL CPP, the
Commission was preparing to give a decision declaring that
there was an infringement and ordering that it cease;

(b) that, accordingly, the contracts at issue must be regarded as

void under Article 81(2) of the EC Treaty;

(c) that the Commission cannot seek to accept those contracts
by means of commitment proceedings, when it does not
require the infringing party to bring the restrictive practice
to an immediate end, but only requires it to grant the possi-
bility of early recovery. On the other hand, despite the fact
that it is the unduly lengthy term of the clauses restricting
competition which infringes the competition provisions, it
requires the operator, in order to recover its right, to pay a
price calculated on the basis, among other things, of the
remaining years of the term laid down for the right in rem.

Finally, the applicant pleads infringement of the principle in
accordance with which persons subject to Community law may
not benefit from their own unlawful acts or become enriched
without just cause.

(1) OJ L 1 of 4.1.2003, p. 1.

Applicant: Omya AG (Oftringen, Switzerland) (represented by: J.
Flynn, Barrister, and C. Ahlborn, Solicitor)

Defendant: Commission of the European Communities

Form of order sought

— […] Omya therefore respectfully asks the Court to annul
the decision and to order the Commission to pay Omya's
costs.

Pleas in law and main arguments

The applicant seeks the annulment of Commission Decision
C(2006) 3163 final of 19 July 2006 in merger case COMP/
M.3796 by which the Commission declared the applicant's take
over of the precipitated calcium carbonate business from J.M.
Huber Corporation compatible with the common market and
the functioning of the Agreement on the European Economic
Area. The Commission further imposed certain conditions and
obligations with which the applicant is to comply.

(a)

The applicant contends that
the competition concerns
which the Commission has identified are unfounded and (b)
that in any event the remedies effectively imposed on the appli-
cant are inappropriate and are not justified by the concerns
identified by the Commission and are not capable of producing
the effects claimed by the Commission.

The applicant invokes three pleas in law in support of its appli-
cation.

Firstly, the applicant submits that the Commission manifestly
erred in concluding that the transaction would significantly
impede effective competition.

Secondly, the applicant claims that the Commission manifestly
erred in its assessment and breached the principle of propor-
tionality in requiring the disposal of the Kuusankoski plant.

C 294/60

EN

Official Journal of the European Union

2.12.2006

Thirdly, the applicant invokes that the Commission infringed
essential procedural requirements by failing to analyse properly
the evidence in its file and failing to provide the applicant with
access to all relevant documents, thereby infringing the appli-
cant's rights of defence.

Decision of the Board of Appeal: Refusal of the application for
restitutio in integrum and declaration that the appeal was deemed
not to have been filed

Pleas in law: Misinterpretation of Article 78(5) of Council Regu-
lation No 40/94 in finding that an application for restitutio in
integrum cannot be made if the subject matter of the said appli-
cation concerns the failure to comply with the time limit set
out in Article 59 of the regulation.

Action brought on 9 October 2006 — Omnicare v OHIM
— Yamanouchi Pharma (OMNICARE)

(Case T-277/06)

(2006/C 294/120)

Language in which the application was lodged: English

Parties

Applicant: Omnicare Inc. (Covington, USA) (represented by: M.
Edenborough, Barrister)

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

Other party before the Board of Appeal: Yamanouchi Pharma
GmbH (Heidelberg, Germany)

Form of order sought

— The appeal by the appellant to the Court of First Instance

be allowed;

Action brought on 6 October 2006 — United Kingdom v
Commission

(Case T-278/06)

(2006/C 294/121)

Language of the case: English

Parties

Applicant: United Kingdom of Great Britain and Northern
Ireland (represented by: E. O'Neill, acting as agent, and H.
Mercer, Barrister)

Defendant: Commission of the European Communities

— the decision of

the Second Board of Appeal case No

R0446/2006-2 be annulled in its entirety;

Form of order sought

— the application for restitutio in integrum be remitted to the

Board of Appeal for reconsideration; and

— the Office pays to the appellant the costs incurred by it in
connection with this appeal before the Court of First
Instance.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: Word mark ‘OMNICARE’ for
goods and services in classes 16 and 42 — application No
284 067

Proprietor of the mark or sign cited in the opposition proceedings:
Yamanouchi Pharma GmbH

Mark or sign cited: National figurative mark ‘OMNICARE’ for
services in classes 35, 41 and 42

Decision of
entirety

the Opposition Division: Opposition upheld in its

— Article 1 of Commission Decision 2006/554/EC on the
clearance of accounts presented by Member States in
respect of expenditure of the Guarantee Section of the
European Agricultural Guidance and Guarantee Fund be
annulled in so far as it excludes from Community financing
United Kingdom expenditure for the years 2001-2004 in
the sum of £1,351,441.25 in the audit field ‘Butterfats in
food processing’ on the grounds of ‘Insufficient quantity
controls on manufactured quantities’;

— the Commission be ordered to pay the costs incurred by

the United Kingdom.

Pleas in law and main arguments

The applicant seeks the partial annulment of the Commission's
Decision 2006/554/EC of 27 July 2006 excluding from Com-
munity financing certain expenditure incurred by the Member
the European Agri-
States under the Guarantee Section of
cultural Guidance and Guarantee Fund (EAGGF) (1) and in par-
ticular the part concerning the use of butterfats in food proces-
sing in the United Kingdom.