Case T-24/07: Action brought on 6 February 2007 — ThyssenKrupp Stainless v Commission
Date: 2007-04-14
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), competition law, fine, iron and steel industry, restriction on competition

14.4.2007

EN

Official Journal of the European Union

C 82/39

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

Other party to the proceedings before the Board of Appeal of OHIM:
Bodegas Navarro López, S.L

Other party to the proceedings before the Board of Appeal of OHIM:
Sociedad Cooperativa del Campo San Ginés

Form of order sought

Form of order sought

— The annulment of the decision of 6 November 2006 of the
2nd Board of Appeal of OHIM issued in case R36/2006-2
with costs awarded against OHIM

Pleas in law and main arguments

Applicant for a Community trade mark: Sociedad Cooperativa del
Campo San Ginés

Community
BENITEZ’ for products in class 33 (application No. 2.438.018)

trade mark concerned: Word mark ‘TORRE DE

Proprietor of the mark or sign cited in the opposition proceedings:
Applicant

Mark or sign cited in opposition: International or national trade
marks under the word mark ‘Torres’ for products in class 33,
numerous other Community,
international and national trade
marks

— The annulment of the decision of the 1st Board of Appeal
of OHIM of 26 September 2006 issued in case no R1407/
2005-1 with costs awarded against OHIM

Pleas in law and main arguments

Applicant for a Community trade mark: Bodegas Navarro Lopéz,
S.L.

Community trade mark concerned: Word mark ‘CITA DEL SOL’ for
products and services within classes 33 and 39 (application
No. 2.712.982)

Proprietor of the mark or sign cited in the opposition proceedings:
Applicant

Mark or sign cited in opposition: Community word mark ‘VIÑA
SOL’ (mark no 462.523) and national word marks ‘VIÑA SOL’
for products within class 33,
‘TORRES VIÑA SOL’ for
products within class 33, national word mark ‘SOL’ for products
within class 33.

label

Decision of the Opposition Division: Rejection of the opposition

Decision of the Opposition Division: Rejection of objection

Decision of the Board of Appeal: Rejection of the appeal

Decision of the Board of Appeal: Rejection of appeal

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC)
40/94 (1) given that there is a likelihood of confusion between
the trade marks at issue

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC)
No 40/94 (1) given that
there is a likelihood of confusion
between the marks at issue.

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

Community trade mark.

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

Community trade mark.

Action brought on 16 January 2007 — Miguel Torres, S.L.
v OHIM

Action brought on 6 February 2007 — ThyssenKrupp
Stainless v Commission

(Case T-17/07)

(2007/C 82/87)

Language in which the application was lodged: Spanish

(Case T-24/07)

(2007/C 82/88)

Language of the case: German

Parties

Applicant: Miguel Torres, S.L. (Barcelona, Spain) (represented by:
E. Armijo Chávarri, M. Baz de San Cerefino, A. Castán Pérez-
Goméz, lawyers)

Parties

Applicant: ThyssenKrupp Stainless AG (Duisburg, Germany)
(represented by: M. Klusmann and S. Thomas)

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

Defendant: Commission of the European Communities

C 82/40

EN

Official Journal of the European Union

14.4.2007

Form of order sought

— miscalculation of the fine in the light of the 1996 Leniency

Notice (2).

— annul the contested decision;

— in the alternative, annul Article 2 of the operative part of

that decision;

— in the further alternative, reduce the amount of the fine

imposed on the applicant in the contested decision;

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

(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 18 July 1996 on the non-imposition or

reduction of fines in cartel cases (OJ 1996 C 207, p. 4).

Pleas in law and main arguments

Action brought on 7 February 2007 — LIPOR v Commis-
sion

The applicant challenges Commission Decision C(2006) 6765
final of 20 December 2006 in Case COMP/39.234 — Alloy
surcharge re-adoption. In the contested decision, which concerns
the reopening of the proceeding in Case IV/35.814 — Alloy
surcharge, a fine was imposed on the applicant for infringement
of Article 65(1) CS by Thyssen Stahl GmbH (previously Thyssen
Stahl AG) in that it agreed an alteration to the reference values
used to calculate the alloy surcharge and applied that alteration.

The applicant raises ten pleas in law in support of its action:

Parties

(Case T-26/07)

(2007/C 82/89)

Language of the case: Portuguese

— infringement of the principle of nulla poena sine lege, since,
in the absence of transitional provisions, the Commission
had no power to apply retroactively the CS Treaty which
expired in 2002;

— unlawful application of Regulation (EC) No 1/2003 (1), since
it grants entitlement only to apply Articles 81 EC and 82
EC, but not the CS Treaty;

— infringement of the principal of res iudicata, since the Court
of Justice has already given final judgment in the case to the
effect that on the merits the applicant is not liable for the
infringement of Thyssen Stahl AG which was alleged against
it and attributed to it once more in the contested decision;

— lack of responsibility of the applicant by way of a private
declaration of assumption of liability, since such a declara-
tion is declaratory at most;

— infringement of the principle of

legal certainty since the
basis for the penalty and the basis for the attribution of
liability are insufficiently certain;

— infringement of the principle of ne bis in idem, because a fine
has been imposed on the applicant already in the first
proceedings on the same facts, a matter on which the Court
has given final judgment;

— the infringement is time barred;

— infringement of the right of access to the file;

— infringement of the right to be heard due to incomplete

objections; and

Applicant: LIPOR — Serviço Intermunicipalizado de Gestão de
Resíduos do Grande Porto (Gondomar, Portugal) (represented
by: P. Pinheiro, M. Gorjão-Henriques and F. Quintela, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annulment in part of Article 1 of Commission Decision
C(06)5008 of 17 October 2006, addressed to the Portu-
guese State, in so far as it considers that the total assistance
granted by the Cohesion Fund under Commission decisions
Nos C(93)3347/3 of 7 December 1993, C(94)3721 final/3
of 21 December 1994 and C(96)3923 final of 17 December
1996,
reproduced in Decision C(98)2283/f, must be
regarded as reduced by EUR 1 511 591 and of the decision
to order reimbursement of
that amount to the Member
State;

— annulment of Article 1 of the contested decision in so far as
it orders a financial correction of 100 % in relation to the
contracts concluded by the applicant with the IDAD
(Instituto do Ambiente e Desenvolvimento, Environment
and Development Institute) for breach of the principle of
proportionality, and in so far as it orders the Member State
to reimburse EUR 458 683;

— an order that the Commission should pay the costs of the

proceedings, including the applicant's costs;

— as a subsidiary matter, annulment in part of Article 1 of the
contested order for breach of the principle of proportion-
ality, with regard to the contracts concluded by the applicant
with Hidroprojecto;