Case C-513/06 P: Appeal brought on 18 December 2006 by Commission of the European Communities against the judgment of the Court of First Instance (Fourth Chamber, Extended Composition) delivered on 27 September 2006 in Case T-168/01: GlaxoSmithKline Services Unlimited, formerly Glaxo Wellcome plc v Commission of the European Communities
Date: 2007-02-24
Institutions: Court of Justice
Subjects: European Commission, Spain, action for annulment (EU), appeal, fixing of prices, pharmaceutical product, selling price

24.2.2007

EN

Official Journal of the European Union

C 42/13

Form of order sought

— Set aside the judgment of the Court of First Instance of the
European Communities (Second Chamber) of 10 October
2006 in Case T-302/03;

— Order the defendant and respondent to pay the costs.

Pleas in law and main arguments

Appeal brought on 18 December 2006 by Commission of
the European Communities against the judgment of the
Court of First Instance (Fourth Chamber, Extended Compo-
sition) delivered on 27 September 2006 in Case T-168/01:
GlaxoSmithKline Services Unlimited, formerly Glaxo Well-
come plc v Commission of the European Communities

(Case C-513/06 P)

(2007/C 42/22)

Language of the case: English

and direct

Instance wrongly considered that

The judgment of the Court of First Instance of 10 October
2006 infringes Article 7(1)(b) of Regulation No 40/94 (1). The
Court of First
there is a
‘specific
relationship’ between the designation
‘map&guide’ and the ‘computer software’ product and ‘computer
programming’ services and that the designation ‘map&guide’
that product and
allows for an ‘immediate identification’ of
those services (paragraph 40 of the judgment). Furthermore, the
Court of First Instance erred in law when it assumed that the
sign ‘map&guide’ enables the relevant public ‘to establish imme-
diately, and without reflection, a specific and direct relationship
software [product] and the computer
with the computer
programming services for computers providing the function of
(city) maps and (travel) guides’ (paragraph 47 of the judgment).
Finally, it is claimed in the judgment that the ‘computer soft-
ware’ product group and the ‘computer programming’ services
group may also include goods and services which have the func-
tion of providing (city) maps and (travel) guides.

The interpretation of Article 7(1)(b) of Regulation No 40/94
adopted by the Court of First Instance in the judgment is incor-
rect. Contrary to the assumption of the Court of First Instance
the mark applied for does not lack distinctive character. The
mark applied for is not descriptive. A ‘specific and direct rela-
tionship’ and an ‘immediate identification’ may only be assumed
to exist if the term at issue is one which directly designates the
product or services in question or describes characteristics
which ‘attach to’ the particular goods or services immediately or
per se. That does not apply to the designation ‘map&guide’. It
the
neither designates the ‘computer software’ product or
‘computer programming’ services directly nor makes a statement
regarding an essential characteristic which is immediately asso-
ciated with the product or services. The public does not have
the opportunity ‘to establish immediately, and without reflec-
tion, a specific and direct relationship with the computer soft-
ware [product] and the computer programming services for
computers providing the function of (city) maps and (travel)
guides’. Furthermore, neither
‘computer programming’
services nor the ‘computer software’ product can ‘provide’ the
function of a (city) map or a (travel) guide.

the

The connection which the Court of First Instance in the judg-
ment assumed to exist between the designation ‘map&guide’
and the specifically referred to ‘computer software’ product and
‘computer programming’ services is not present at the outset,
but is only artificially contrived.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

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

Parties

Appellant: Commission of the European Communities (repre-
sented by: T. Christoforou, F. Castillo de la Torre et E. Gippini
Fournier, Agents)

Other parties to the proceedings: European Association of Euro
Pharmaceutical Companies (EAEPC), Bundesverband der Arznei-
mittel-Importeure eV, Spain Pharma, SA, Asociación de exporta-
dores españoles de productos farmacéuticos (Aseprofar), GlaxoS-
mithKline Services Unlimited, anciennement Glaxo Wellcome
plc

Form of order sought

The applicant claims that the Court should:

— set aside points 1 and 3 to 5 of the operative part of the
judgment of the Court of First Instance of 27 September
2006 in Case T-168/01, GlaxoSmithKline Services Ltd. v.
Commission of the European Communities;

— give final judgment in the matter by dismissing the applica-

tion for annulment in Case T-168/01 as unfounded;

— order the Applicant in Case T-168/01 to pay the costs of
the Commission arising from that case and from the present
appeal.

Pleas in law and main arguments

The Commission agrees with the conclusions of the Court of
First Instance concerning the reasoning of the contested deci-
sion; the existence of an agreement between undertakings; the
alleged misuse of powers and the alleged infringement of the
principle of subsidiary and of Article 43 EC.

‘effect’

the Commission contests

Concerning the part of the judgment dealing with existence of
an anticompetitive
the
reasoning followed by the Court of First Instance. It maintains
that the Court's analysis confirming the existence of the restric-
tive ‘effects’ constitutes in reality an analysis of the restrictive
‘object’ of the agreement having due regard to the legal and
economic context, and should have led the Court to confirm
the Decision's finding that the agreement had an anticompetitive
the
object. Concerning the other
Commission has serious objections in particular regarding: the
definition of the relevant market; the dismissal of the Commis-
sion's findings under Article 81(1)(d) with the legally erroneous
argument that the different prices were charged on different
geographic markets; and a number of other findings made in
the in the judgment where the Court substitutes its own

findings about

‘effects’,

C 42/14

EN

Official Journal of the European Union

24.2.2007

assessment of the factual and economic evidence for that of the
Commission, an exercise that
is not permissible in judicial
review. However, given that the Commission shares the ultimate
conclusions reached by the Court,
i.e that the agreement in
question produced anticompetitive effects, it does not intend at
this stage to raise grounds of appeal against this part of the
judgment.

The present appeal raises two series of pleas. The first series
relates to the findings concerning Article 81(1), and in particular
the errors of law and distortions in the interpretation and appli-
cation of the notion of ‘object’ in the provision, as well as the
many distortions, errors of law, and inadequacies or contradic-
tions in the reasoning in relation with ‘legal and economic
context’ of the agreement. The second series of pleas relates to
the findings under Article 81(3):
those
relating to the first condition contemplated in this provision,
but also the lack of examination of several other conditions.

first and foremost

pean Communities v Ferriere Nord SpA infringes the first paragraph
of Article 230 EC, read in conjunction with Article 249 EC,
concerning the interpretation of the concept of an act against
which proceedings can be brought, fails to state reasons or
states incorrect reasons and is vitiated by a lack of jurisdiction
on the part of the Court of First Instance.

first

the applicant at

Instance did not demonstrate that

The Court of First
the
contested acts produced binding legal effects likely to affect the
interests of
thereby bringing
about a significant change in its legal position. The Court of
First
Instance also based its finding of admissibility on the
assumption, also unsubstantiated, that a presumption of lawful-
ness attached to the acts contested at first instance. Lastly, the
Court of First Instance exceeded the powers conferred on it by
the Treaty.

instance,

Appeal brought on 20 December 2006 by the Commission
of the European Communities against the judgment of the
Court of First
Instance (First Chamber) delivered on
27 September 2006 in Case T-153/04 Ferriere Nord SpA v
Commission of European Communities

(Case C-517/06)

(2007/C 42/24)

Language of the case: German

Action brought on 20 December 2006 — Commission of
the European Communities v Republic of Austria

(Case C-516/06 P)

(2007/C 42/23)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (repre-
sented by: G. Braun and E. Montaguti)

Parties

Defendants: Republic of Austria

Appellant: Commission of the European Communities (repre-
sented by: V. Di Bucci and F. Amato, Agents)

Form of order sought

Other party to the proceedings: Ferriere Nord SpA

The Court is asked to:

Form of order sought

— The Court

is asked to set aside the judgment appealed
against in so far as it declares admissible the action for
annulment brought by Ferriere Nord against the Commis-
sion's letter of 5 February 2004 and its fax of 13 April
2004;

— declare inadmissible and accordingly dismiss the action for
annulment brought by Ferriere Nord against the contested
acts;

— order Ferriere Nord to pay the costs of the proceedings,
together with the costs of the proceedings at first instance.

— declare that, by failing to adopt, in the Steiermark and Salz-
burg Länder, the laws, regulations and administrative provi-
sions necessary to comply with Directive 2003/98/EC of the
European Parliament and of the Council of 17 November
2003 on the re-use of public sector information (1) or, in
any event, by failing to communicate them to the Commis-
sion, the Republic of Austria has failed to fulfil its obliga-
tions under that directive;

— order the Republic of Austria to pay the costs.

Pleas in law and main arguments

The period prescribed for transposition of the directive expired
on 1 July 2005.

Pleas in law and main arguments

(1) OJ 2003 L 345, p. 90.

In so far as it declares admissible the action brought at first
Instance of
instance,
27 September 2006 in Case T-153/04 Commission of the Euro-

the Court of First

the judgment of