Case T-108/07: Action brought on 8 April 2007 — Spira v Commission
Date: 2007-04-08
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), competition law, complaint to the Commission, distributive trades, precious stones, restriction on competition

C 129/20

EN

Official Journal of the European Union

9.6.2007

Decision of the Board of Appeal: Annulment of the Opposition
Division's decision and rejection of the opposition in its entirety

Action brought on 8 April 2007 — Spira v Commission

Pleas in law: The trade marks in question are confusingly similar
and the goods applied for are identical to those covered by the
opposition trade marks.

(Case T-108/07)

(2007/C 129/36)

Language of the case: English

Appeal brought on 16 April 2007 by Francisco Rossi
Ferreras against the judgment of the Civil Service Tribunal
delivered on 1 February 2007 in Case F-42/05 Rossi
Ferreras v Commission

(Case T-107/07 P)

(2007/C 129/35)

Language of the case: French

Parties

Applicant: Diamanthandel A. Spira BVBA (Antwerpen, Belgium)
J. Bourgeois, Y. van Gerven, F. Louis and
(represented by:
A. Vallery, lawyers)

Defendant: Commission of the European Communities

Form of order sought

Parties

Appellant: Francisco Rossi Ferreras (Luxemburg, Grand Duchy of
Luxembourg) (represented by F. Frabetti, lawyer)

Other party to the proceedings: Commission of
Communities

the European

Form of order sought by the appellant

— set aside the judgment of

the Civil Service Tribunal of

1 February 2007 in Case F-42/05;

— grant

the forms of order

sought by the appellant at
first instance and, primarily, declare the application in Case
F-42/05 to be admissible and well founded;

— in the alternative,

remit

the case to the Civil Service

Tribunal;

— make an order as to costs, expenses and fees and order the

Commission to pay them.

Pleas in law and main arguments

In his appeal, the appellant seeks the annulment of the judg-
ment of the Civil Service Tribunal dismissing his application for
the annulment of his career development report for the period
from 1 January to 31 December 2003 and an order requiring
the Commission to compensate him for the damage that he
claims to have suffered.

In support of his appeal, the appellant claims that the Civil
Service Tribunal made several errors of law in its consideration
of the two pleas in law put forward at first instance.

— Annul

the

Commission

January
2007, pursuant
to Article 7(2) of Council Regulation
No 773/2004, in case COMP/38.826/B-2 — Spira/De Beers/
DTC Supplier of Choice;

decision

26

of

— order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant contests the Commission's decision of 26 January
2007 in competition Case COMP/38.826/B-2 — Spira/De
Beers/DTC Supplier of Choice, by which the Commission
rejected the applicant's complaint regarding violations of Arti-
cles 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
the
its Supplier of Choice system to extend its control of
market to cover the entire diamond pipeline from mine to
consumer, i.e. also the downstream markets.

In support of its application, the applicant invokes three pleas
in law.

the applicant claims that

Firstly,
the Commission failed to
honour its duty to conduct a careful and impartial investigation
of the complaint and to examine with proper care and imparti-
ality the anticompetitive practices denounced in the complaint.

Secondly, the applicant alleges that the Commission could not
claim that there was a lack of sufficient Community interest to
act on the complaint, in light of the size of the undertaking
involved, the geographic scope of the anticompetitive practices
and the damage to competition and the internal market caused
by the infringements.

9.6.2007

EN

Official Journal of the European Union

C 129/21

Thirdly and finally, the applicant submits that the Commission
concluded to the absence of sufficient Community interest on
the basis of an erroneous assessment, in fact and in law, of the
circumstances of the case since:

1) the Commission failed to take into account the manifest
limited

publicly stated anticompetitive object of De Beers'
selective distribution system;

2) the Commission could not assess the anticompetitive effects
of the De Beers' distribution system without first assessing
De Beers' dominance and market power;

3) the Commission failed to take into account the numerous
elements brought to its attention in the complaint demon-
strating the inherently abusive and anticompetitive nature of
the system;

4) the Commission wrongly assessed the effectiveness of the
revised Terms of Reference for the Ombudsman that De
Beers had introduced to resolve disputes as to the implemen-
tation of the distribution system; and

5) the Commission made an error of law and a manifest error
of assessment of the facts in finding that De Beers' distribu-
tion system does not foreclose the market.

Action brought on 13 April 2007 — Agrofert Holding v
Commission

(Case T-111/07)

(2007/C 129/37)

Language of the case: English

Parties

Applicant: Agrofert Holding a.s. (Praha, Czech Republic) (repre-
sented by: R. Pokorný, lawyer)

Defendant: The Commission of the European Communities

Form of order sought

— Annulment

of Commission Decision

SG.E.3/MIB/md
D (2007) 1360 of 13 February 2007 relating to the request
for access to documents in merger Case No COMP/M.3543
— PKN Orlen/Unipetrol
and Commission Decision
16796/16797 of 2 August 2006;

— order the Commission to produce the documents in ques-

tion;

— order the Commission to pay the costs.

Pleas in law and main arguments

By means of its application, the applicant seeks the annulment,
under Article 230 EC, of Commission's Decision of 2 August

2006 (hereinafter ‘Decision I’) as well as the Commission's
subsequent confirmatory decision of 13 February 2007 (herein-
after ‘Decision II’) relating to the request for access to all unpub-
lished documents relating to the notification and pre-notifica-
tion phases of the merger at stake.

The applicant claims that both decisions are contrary to Regu-
lation (EC) No 1049/2001 (1), regarding public access to Euro-
pean Parliament, Council and Commission documents (herein-
after ‘The Regulation’) as they do not fall within the exceptions
enshrined in its Article 4(2), relating to protection of commer-
cial interests, protection of the purpose of investigation, protec-
tion of Legal Advice or its Article 4(3) relating to protection of
decision-making process.

The applicant further submits that Article 4(2), first indent, of
the Regulation should not be interpreted as if the exceptions
applied to the entirety of the documents but only to the parts
due to contain business secrets or commercially sensitive infor-
mation. Thus, according to the applicant, the defendant could
have either released to the public parts of the requested docu-
ments or blackened the parts containing the sensitive informa-
tion without undermining the purpose of inspections, investiga-
tions and audits, the notifying parties and third parties right's,
legal advice or the institution's decision-
the protection of
making process.

Moreover, the applicant contends that the defendant, instead of
conducting individual examination of each document falling, in
its view, under the exception of Article 4(2), third indent, of the
Regulation, has generally refused the requested access on the
basis of the sole fact that all documents contain business secrets
and cannot be disclosed according to Article 17 of the Council
Regulation (EC) No 139/2004 (2). Such generalisation would be
contrary to Article 4(6) of the Regulation.

Besides, the applicant submits that the above-mentioned excep-
tions apply only if they are not waived by an overriding public
interest in disclosure. According to the applicant, such interest
to disclose the requested documents, deriving from the damage
suffered by the applicant and minority shareholders of
the
acquired company, exists and outweighs the exceptions to the
right of access.

The applicant, moreover, claims that Decision I and II are
contrary to Article 1 EU, second subparagraph, enshrining the
principle of openness.

Finally, the applicant submits that the defendant did not handle
the confirmatory application promptly according to Article 8(1)
of the Regulation but exceeded the time-limit for replying by
100 working days.

(1) OJ L 145, 31.5.2001, p. 43-48.
(2) Council Regulation (EC) No 139/2004 of 20 January 2004 on the
L 24,
concentrations between undertakings

(OJ

control of
29.1.2004, p. 1-22).