Case T-386/06: Action brought on 15 December 2006 — Pegler v Commission
Date: 2006-12-15
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), exchange of information, fine, piping, price agreement, restriction on competition, trade information, unlawful agreement

C 20/34

EN

Official Journal of the European Union

27.1.2007

Moreover, the applicants contend that the Commission breached
Article 253 EC as the contested decision does not provide any
statement of reasons for imposing an additional amount of
EUR 2.04 million on the applicants Aquatis France and Simplex
Amaturen + Fittings.

— the fine for which the applicant is made jointly and severally
liable pursuant to Article 2(h) is reduced to EUR 1.7 million.

— In either case, the defendant should be ordered to bear the

costs of this appeal.

that

the applicants submit

Fifthly,
the Commission violated
Article 2 of Regulation 1/2003 (1) and the principle of equality
of arms by shifting the burden of proof on the applicants by
relying entirely on leniency statements and by refusing to use its
fact-finding powers. Furthermore, the applicants contend that
the Commission
of Regulation
773/2004 (2) by including in the contested decision objections
which were not formulated against the applicants in the State-
ment of Objections.

violated Article

11(2)

(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 2003 L 1, p. 1).

(2) Commission Regulation (EC) No 773/2004 of 7 April 2004 relating
to the conduct of proceedings by the Commission pursuant to Arti-
cles 81 and 82 of the EC Treaty (OJ 2004 L 123, p. 18).

Action brought on 15 December 2006 — Pegler v
Commission

(Case T-386/06)

(2007/C 20/51)

Language of the case: English

Pleas in law and main arguments

The applicant seeks the partial annulment of Commission Deci-
sion C(2006) 4180 final of 20 September 2006 in Case COMP/
F-1/38.121 — Fittings, by which the Commission found that
the applicant, together with other undertakings, had infringed
Article 81 EC and Article 53 of the Agreement on the European
Economic Area by fixing prices, agreeing on price lists, agreeing
on discounts and rebates, agreeing on implementation mechan-
isms for introducing price increases, allocating national markets,
allocating customers and exchanging other commercial informa-
tion.

In support of its application, the applicant submits that the
Commission has not
factual documentary
taken account of
evidence from the applicant and that the contested decision
should have been addressed exclusively to the applicant's former
parent company Tomkins for the following reasons.

Concerning the period from 31 December 1988 to 20 January
1989 the Commission has, according to the applicant, imposed
liability on the applicant simply by virtue of its acquisition on
20 January 1989 of the name ‘Pegler Ltd’ and by virtue of the
existence of an agency relationship with the Tomkins group
company FHT Holdings Ltd (‘FHT’) in circumstances where the
applicant did not acquire any of
the underlying assets,
employees or liabilities and remained dormant, receiving no
remuneration in its capacity as agent for FHT.

Parties

Applicant: Pegler Ltd (Doncaster, United Kingdom) (represented
by: R. Thompson, QC, and A. Collinson, solicitor)

Defendant: Commission of the European Communities

Concerning the period from 20 January 1989 to 29 October
1993 the applicant submits that the Commission has imposed
liability on the applicant for acts that could only have been
carried out as agent
in circumstances where FHT
owned all of the underlying assets, employees or liabilities of
the ‘Pegler’ business.

for FHT,

Form of order sought

— Annul Articles 1 and 3 of the Decision COMP/F-1/38.121

in respect of the applicant; and

— annul Article 2(h) of the decision in so far as it imposes a

fine jointly and severally on the applicant.

— Alternatively, order

to
Article 2(h) of the decision is reduced to EUR 5.2 million;
and

the fine imposed pursuant

that

The Commission has, according to the applicant, failed to iden-
tify a clear addressee for the contested decision and has instead
addressed its decision in respect of
the same facts to two
different undertakings.

The applicant contends, moreover, that the Commission has,
inconsistently with the principle of equality of treatment, with
Article 23 of Regulation 1/2003 (1) and with the Commission's
fining guidelines (2),
imposed on two different undertakings
joint and several
liability for payment of a fine calculated
without reference to their individual circumstances but rather
i.e.
on the individual circumstances of only one of
Tomkins.

them,

27.1.2007

EN

Official Journal of the European Union

C 20/35

Alternatively, the applicant submits that the Commission failed
to comply with the fining guidelines, its own consistent practice
and the principles of non-discrimination and equality of treat-
ment in calculating the fine for which the applicant is held
liable by reference to the individual circumstances of a different
undertaking, Tomkins. The applicant further alleges that the
Commission committed an error in calculating the fine.

(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 2003 L 1, p. 1).

(2) Commission Notice of 14 January 1998 entitled ‘Guidelines on the
method of setting fines imposed pursuant to Article 15(2) of Regu-
lation No 17 and Article 65(5) of the ECSC Treaty’ (OJ 1998 C 9,
p. 3).

Action brought on 20 December 2006 — Inter-
IKEA v OHIM (representation of a pallet)

(Case T-388/06)

(2007/C 20/53)

Language of the case: English

Parties

Applicant:
sented by: J. Gulliksson, lawyer)

Inter-IKEA Systems BV (Delft, Netherlands)

(repre-

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

Form of order sought

Action brought on 20 December 2006 — Inter-
IKEA v OHIM (representation of a pallet)

— Annul the decision of

the First Board of Appeal of 26

September 2006 in Case R 354/2006-1;

(Case T-387/06)

(2007/C 20/52)

Language of the case: English

Parties

Applicant:
sented by: J. Gulliksson, lawyer)

Inter-IKEA Systems BV (Delft, Netherlands)

(repre-

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

Form of order sought

— Annul the decision of

the First Board of Appeal of 26

September 2006 in Case R 353/2006-1;

— order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Figurative mark representing a
pallet consisting of an elongated rectangular platform or base
and an equally elongated flange, ornamented with square holes,
which are both at a 90 degree angle to each other, for goods
and services in classes 6, 7, 16, 20, 35, 39 et 42 — application
No 4 073 763

Decision of the examiner: Refusal of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Violation of Article 7(1)(b) of Council Regulation
No 40/94 as the trade mark is sufficiently distinctive to be regis-
tered.

— order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Figurative mark representing a
pallet consisting of an elongated rectangular platform or base
and an equally elongated flange, ornamented with round holes,
which are both at a 90 degree angle to each other, for goods
and services in classes 6, 7, 16, 20, 35, 39 et 42 — application
No 4 073 731

Decision of the examiner: Refusal of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Violation of Article 7(1)(b) of Council Regulation
No 40/94 as the trade mark is sufficiently distinctive to be regis-
tered.

Action brought on 20 December 2006 — Inter-
IKEA v OHIM (representation of a pallet)

(Case T-389/06)

(2007/C 20/54)

Language of the case: English

Parties

Applicant:
sented by: J. Gulliksson, lawyer)

Inter-IKEA Systems BV (Delft, Netherlands)

(repre-

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