Case T-45/07: Action brought on 16 February 2007 — Unipetrol v Commission
Date: 2007-02-16
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), exchange of information, fine, price agreement, restriction on competition, rubber industry, trade information, unlawful agreement

14.4.2007

EN

Official Journal of the European Union

C 82/49

this complaint

the appellant argues

is directly
that
Also,
connected to his second plea alleging infringement of the prin-
ciple of non-discrimination on the grounds of unlawful compo-
sition of the selection board. On that basis, the appellant claims
the Civil Service Tribunal did not properly implement
the
abovementioned principle, or at least failed to provide adequate
reasoning for the particular features of the competition at stake;
while it misunderstood his pleas and failed to address a number
of them.

Action brought on 16 February 2007 — Kaučuk v
Commission

(Case T-44/07)

(2007/C 82/102)

In support of its application, the applicant submits that the
Commission:

— erred in law by imputing the conduct of its sales inter-
mediary Tavorex, an independent legal entity, to the appli-
cant;

— erred by failing to prove to the requisite legal standard that
Tavorex was involved in a single and continuous infringe-
ment from November 1999 until November 2002;

— committed a manifest error of appreciation by finding the
to prove Tavorex's involvement but

same facts sufficient
insufficient to prove the involvement of another producer;

— erred in law by applying EC competition law to the appli-
cant and Tavorex without establishing a sufficient connec-
tion between the applicant/Tavorex, the activity concerned
and the territory of the European Communities contrary to
the case law on extraterritorial application of EC competi-
tion law;

— committed a manifest error of

law and appreciation in
finding that the applicant, through Tavorex, committed an
infringement regarding butadiene rubber, a product
the
applicant neither produces nor sells;

Language of the case: English

— failed to establish,

whether
infringement intentionally or negligently; and

the applicant,

for the purposes of setting the fine,
through Tavorex, committed the

Parties

— committed a manifest error of

law and appreciation by

failing to apply its Fining Guidelines.

Applicant: Kaučuk a.s.
(represented by: M. Powell and K. Kuik, solicitors)

(Kralupy nad Vltavou, Czech Republic)

Defendant: Commission of the European Communities

Action brought on 16 February 2007 — Unipetrol v
Commission

Form of order sought

— Annul Articles 1 to 3 of the contested decision in whole or

in part insofar as they are addressed to the applicant;

— alternatively, annul Article 2 of

the contested decision
insofar as it imposes a fine of EUR 17.55 million on Kaučuk
and fix a substantially lower fine; and

— order the European Commission to pay the costs of the

Parties

(Case T-45/07)

(2007/C 82/103)

Language of the case: English

proceedings.

Applicant: Unipetrol a.s. (Prague, Czech Republic) (represented
by: J. Matějček and I. Janda, lawyers)

Pleas in law and main arguments

Defendant: Commission of the European Communities

The applicant seeks the partial annulment of Commission Deci-
sion C(2006) 5700 final of 29 November 2006 in Case COMP/
F/38.638 — Butadiene Rubber and Emulsion Styrene Butadiene
Rubber, 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 agreeing on price targets for the products, sharing
customers by non-aggression agreements
and exchanging
information relating to prices, competitors and
commercial
customers.

Form of order sought

— Annul the contested decision in whole or in part, at least as

far as Unipetrol is concerned;

— otherwise exercise the Court's unlimited jurisdiction; and

— order the Commission to bear the costs of these proceed-

ings.

C 82/50

EN

Official Journal of the European Union

14.4.2007

Pleas in law and main arguments

Form of order sought

The applicant seeks the annulment of Commission Decision
C(2006) 5700 final of 29 November 2006 in Case COMP/F/
38.638 — Butadiene Rubber and Emulsion Styrene Butadiene
Rubber, 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 agreeing on price targets for the products, sharing
and exchanging
customers by non-aggression agreements
commercial
information relating to prices, competitors and
customers.

for Harmonisation in the

— Annul the decision of the Fourth Board of Appeal of the
Office
Internal Market of
20 December 2006 in appeal No. R1047/2004-4
application No.
concerning Community
001701762.

trade mark

— Order the Office for Harmonisation in the Internal Market

to pay its own costs.

Pleas in law and main arguments

In support of its application, the applicant submits that the
Commission:

Community trade mark concerned: the word mark BioGeneriX for
goods and services in the classes 5, 35, 40 and 42 (Application
No. 1 701 762).

— committed an error of appreciation by rejecting the evidence
that the applicant's holding of all the shares of the company
Kaučuk was of a purely financial nature or, alternatively,
committed a manifest error of appreciation by rejecting
evidence which demonstrated that Kaučuk acted on the
market as an autonomous entity, without any intervention
by the applicant in Kaučuk's sales and marketing policy
concerning emulsion styrene butadiene rubber; and

Decision of the Examiner: Refusal to register.

Decision of the Board of Appeal: Rejection of the appeal.

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation
(EC) No. 40/94 (1), on the basis that the trade mark applied for
demonstrates the minimum distinctive character required and
that there is no specific need for availability.

— erred in law by imputing the same conduct twice to different
the

to Kaučuk and to Kaučuk's shareholder,

i.e.

entities,
applicant.

The rest of the pleas in law and main arguments raised by the
applicant are identical or similar
to those raised in Case
T-44/07, Kaučuk v Commission.

Action brought on 21 February 2007 — ratiopharm GmbH
v OHIM (BioGeneriX)

(Case T-47/07)

(2007/C 82/104)

Language of the case: German

Parties

Applicant: ratiopharm GmbH (Ulm, Germany) (represented by
Rechtsanwalt S. Völker)

(1) Council Regulation No. 40/94 of 20 December 1993 on the Com-

munity trade mark (OJ 1994, L 11, p. 1).

Action brought on 21 February 2007 — ratiopharm v
OHIM (BioGeneriX)

(Case T-48/07)

(2007/C 82/105)

Language of the case: German

Parties

Applicant: ratiopharm GmbH (Ulm, Germany) (represented by
S. Völker, lawyer)

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

Form of order sought

The applicant claims that the Court should

— annul the decision of the Fourth Board of Appeal of the
(Trade
Office for Harmonisation in the Internal Market
Marks and Designs) of 20 December 2006 in Case R 1048/
2004-4 concerning the application for Community trade
mark No 002603124;

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

— order the Office for Harmonisation in the Internal Market to

pay the costs of the proceedings.