Case T-104/07: Action brought on 6 April 2007 — BVGD v Commission
Date: 2007-04-06
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), competition law, complaint to the Commission, distributive trades, precious stones

C 129/18

EN

Official Journal of the European Union

9.6.2007

Action brought on 5 April 2007 — Freistaat Sachsen v
Commission of the European Communities

Action brought on 6 April 2007 — BVGD v Commission

(Case T-102/07)

(2007/C 129/31)

Language of the case: German

(Case T-104/07)

(2007/C 129/32)

Language of the case: English

Parties

Applicant: Freistaat Sachsen (Germany) (represented by C. von
Donat and G. Quardt, lawyers)

Parties

Defendant: Commission of the European Communities

Applicant: Belgische Vereniging van handelaars in- en uitvoerders
(represented by:
(Antwerpen, Belgium)
geslepen diamant
G. Vandersanden, L. Levi and C. Ronzi, lawyers)

Form of order sought

Defendant: Commission of the European Communities

— annul Commission Decision C(2007) 130 final of
24 January 2007 relating to State aid No C 38/2005
(formerly NN 52/2004) from Germany to the Biria Group
in so far as it relates to what the decision terms measures 2
and 3, and

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant challenges Commission Decision C(2007) 130
final of 24 January 2007 in which the Commission held that
the three measures comprising State aid from Germany for the
benefit of Bike Systems GmbH & Co., Thüringer Zweiradwerk
KG, Sachsen Zweirad GmbH and Biria GmbH (now Biria AG) is
incompatible with the common market.

that

The applicant claims
is directly and individually
it
concerned by the Commission's decision, because measures 2
and 3, which relate to guarantees in favour of Sachsen Zweirad
GmbH and Biria GmbH (now Biria AG), were granted by it
from its own resources on the basis of the guarantee guidelines
of the Freistaat Sachsen.

In support of its claim, the applicant claims, first, that there was
an infringement of Community law by reason of an incorrect
interpretation of an approved aid measure. In that regard, the
applicant claims that the defendant misconstrued the corre-
sponding definition in the approved aid measure so as to treat
the undertakings concerned as undertakings in financial difficul-
in the applicant's opinion, that was not the case,
ties. Since,
measures 2 and 3 relate to approved aid.

In addition, the applicant claims that the defendant wrongly
assessed the factual position in proceeding on the basis that the
undertakings concerned were undertakings in financial difficul-
ties.

Lastly, the applicant alleges that the contested decision fails to
state adequate reasons.

Form of order sought

— Annul the decision dated 26 January 2007 by which the
European Commission rejected the complaint
lodged by
BVGD for the reason that there are insufficient grounds for
acting on it (Case COMP/39.221/B-2-BVGD/De Beers);

— order the European Commission to pay all the costs.

Pleas in law and main arguments

The applicant contests the Commission's decision of 26 January
2007 in competition Case COMP/39.221/B-2 — BVGD/De
Beers, by which the Commission rejected the applicant's
complaint regarding violations of Articles 81 and 82 EC in
connection with the Supplier of Choice system applied by the
De Beers Group for the distribution of rough diamonds, with
the reasoning that there is not sufficient Community interest to
act further on the applicant's complaint.

The applicant alleges that De Beers — a producer of rough
diamonds who, according to the applicant, was mainly involved
upstream with the sale of rough diamonds — is trying through
its Supplier of Choice system to extend its control of
the
market to cover the entire diamond pipeline from mine to
consumer, i.e. also the downstream markets.

the

that

prevented

In support of its application, the applicant firstly claims a viola-
its procedural rights as complainant. The applicant
tion of
from
Commission
i)
alleges
exercising its right to have access under Article 8(1) of Regu-
lation No 773/2004 (1)
to the documents on which the
Commission based its provisional assessment,
the
Commission put undue pressure on the applicant by its manage-
ment of the time-limits in the case, iii) that the Commission
created, in its correspondence with the applicant, confusion as
to the stage of the procedure, and iv) that the Commission did
not associate the applicant closely with the procedure.

that

ii)

it

9.6.2007

EN

Official Journal of the European Union

C 129/19

Secondly, the applicant submits that the Commission violated
the notion of Community interest and committed manifest
errors of appraisal, erred in law and violated its duty to state
reasons.

(1) 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).

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94 as the Board of Appeal did not correctly assess
the similarity of the goods and services and the trade marks in
question.

Action brought on 2 April 2007 — MarketTools v OHIM
— Optimus-Telecomunicações (ZOOMERANG)

(Case T-105/07)

(2007/C 129/33)

Action brought on 11 April 2007 — Alcon v OHIM —
*Acri.Tec (BioVisc)

(Case T-106/07)

(2007/C 129/34)

Language in which the application was lodged: English

Language in which the application was lodged: English

Parties

Parties

Applicant: MarketTools, Inc. (San Francisco, United-States) (repre-
sented by: W. von der Osten-Sacken and A. González Hähnlein,
lawyers)

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

Other party to the proceedings before the Board of Appeal: Optimus-
Telecomunicações, SA (Maia, Portugal)

Form of order sought

— Annul

the decision of

the Second Board of Appeal of

25 January 2007 (Appeal No R 253/2006-2);

— order Optimus-Telecomunicações S.A. to bear the costs of

the proceedings.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘ZOOMERANG’
for goods and services in classes 9, 35 and 42 — application
No 1 603 950

Proprietor of the mark or sign cited in the opposition proceedings:
Optimus-Telecomunicações, SA

Mark or sign cited: The national word and figurative marks
‘BOOMERANG’ for goods and services in classes 9, 16, 35, 37,
38 and 42

Applicant: Alcon, Inc. (Hünenberg, Switzerland) (represented by:
M. Graf, lawyer)

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

Other party to the proceedings before the Board of Appeal: *Acri.Tec
AG Gesellschaft für ophthalmologische Produkte (Hennigsdorf,
Germany)

Form of order sought

— The decision of the Second Board of Appeal of the Office
for Harmonisation in the Internal Market (Trade Marks and
Designs) of 8 February 2007 in Case R 660/2006-2 Alcon,
Inc. v. OHIM (BioVisc) be annulled insofar as it dismissed
the opposition of Alcon,
Inc. against CTM application
3 651 809 ‘BioVisc’;

— the Office for Harmonisation be ordered to bear its own

costs and to pay those of the applicant.

Pleas in law and main arguments

Applicant for the Community trade mark: *Acri.Tec AG Gesellschaft
für ophthalmologische Produkte

Community trade mark concerned: The word mark ‘BioVisc’ for
goods in class 5 — application No 3 651 809

Proprietor of the mark or sign cited in the opposition proceedings: The
applicant

Mark or sign cited: The Community and international word
marks ‘PROVISC’ and ‘DUOVISC’ for goods in class 5

Decision of
entirety

the Opposition Division: Opposition upheld in its

Decision of
entirety

the Opposition Division: Opposition upheld in its