Case T-135/07: Action brought on 19 April 2007 — Italy v Commission
Date: 2007-04-19
Institutions: Court of First Instance
Subjects: European Commission, Italy, State aid, action for annulment (EU), animal disease, market intervention, poultry, poultrymeat

C 140/38

EN

Official Journal of the European Union

23.6.2007

The grounds relied upon by Melco in its application are the
following:

Action brought on 19 April 2007 — Italy v Commission

The Commission has allegedly failed to prove to the requisite
standard that the applicant has infringed Article 81 EC by parti-
cipating in a cartel that had as its object or effect the restriction
of competition in the EEA.

The applicant claims that the Commission has failed to establish
the existence of an agreement to which Melco was a party
which infringed Article 81 EC.

(Case T-135/07)

(2007/C 140/63)

Language of the case: Italian

further

The applicant
the Commission has
committed an error of assessment in disregarding the technical
and economic evidence explaining Melco's lack of presence on,
and proving its difficulty entering, the European market.

submits

that

The applicant contends that the Commission has infringed the
rules of evidence in unjustifiably reversing the burden of proof
and has violated the principle of the presumption of innocence.

Moreover, the Commission has breached, according to the appli-
cant, the principles of equal treatment and proportionality on
various accounts:
in calculating the starting point of the fine
imposed on Melco on the basis of its 2001, not 2003, turnover;
in calculating the multiplier applicable to Melco and in erro-
neously defining the worldwide GIS market and Melco's share of
it. Furthermore, the Commission has breached the principle of
proportionality, according to the applicant, in assessing the fine
on Melco for its involvement in the GQ (1) agreement in the
same way as it did for the European producers involved in both
GQ and EQ (2) agreements.

The applicant claims that the Commission has infringed the
duty to state reasons in finding that Melco's fine should be
calculated on the basis of its 2001 turnover and that Melco has
15-20 % of worldwide GIS turnover.

Parties

Applicant: Italian Republic (represented by: G. Aiello, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— annul, as provided for in Article 230 of the EC Treaty, the
decision in the letter of 7 February 2007, prot. No. 3585, of
the Director General of the Directorate-General for Agri-
culture of the Commission;

— order the Commission to pay the costs.

Moreover, the Commission has allegedly breached the principle
of sound administration in estimating the global GIS market
value.

Pleas in law and main arguments

The applicant claims that the Commission has erred in failing to
take into account economic and technical evidence when asses-
sing the impact of Melco's behaviour and in calculating Melco's
fine. The Commission also erred, according to the applicant, in
determining the duration of the alleged cartel.

Furthermore, the applicant sustains that the Commission has
breached the applicant's rights of defence and right to a fair
hearing in failing to provide Melco with crucial exculpatory and
inculpatory evidence contained in its fine. Finally, the Commis-
sion allegedly failed to put to Melco during the administrative
procedure its conclusions concerning the theory of compensa-
tion, thereby infringing the rights of defence.

(1) ‘G’ stands for ‘gear’ and ‘Q’ stands for ‘quota’.
(2) ‘E’ stands for ‘European’ and ‘Q’ for ‘quota’. The EQ Agreement is
otherwise referred to in the contested decision as ‘E-Group Operation
Agreement for GQ-Agreement’.

The Government of the Italian Republic has brought an action
before the Court of First Instance of the European Communities
to obtain the annulment, as provided for in Article 230 of the
EC Treaty, of the decision in the letter of 7 February 2007, prot.
3585, of the Director General of the Directorate-General for
Agriculture of the Commission, by which the request of the
Italian authorities to adopt exceptional measures to support the
Italian market in poultrymeat within the meaning of Article 14
of Regulation (EEC) No 2777/75 of the Council of 29 October
1975 on the common organisation of the market in poultry-
meat (1) is rejected, so far as concerns the chicks destroyed in
to veterinary
areas affected by avian influenza and subject
measures restricting circulation in the period from December
1999 to September 2003 inclusive.

In support of its action, the Italian Government pleads:

— infringement of the principle of non-discrimination between
Community producers laid down in the second paragraph of
Article 34(2) EC, in so far as the defendant granted excep-
tional market support measures only with regard to the egg-
laying sector, refusing similar measures relating to poultry-
meat by the contested measure;

23.6.2007

EN

Official Journal of the European Union

C 140/39

— misuse of powers and manifest error of assessment on the

part of the Commission;

Other party to the proceedings before the Board of Appeal: CMS
Hasche Sigle (Cologne, Germany)

It is noted in that respect that, for the purpose of attaining
the objective pursued by Regulation No 2777/75,
the
Commission ought to have adopted exceptional measures to
support the Italian market in poultrymeat, by far the most
affected avicultural sector in Italy. By contrast, despite the
repeated request put forward by the applicant, the Commis-
sion refused to do so, merely granting support measures in
favour of the egg-laying sector, the least affected in Italy by
restrictive measures and, essentially, the only one affected in
the Commission clearly
the Netherlands.
intended to allocate the majority of the available resources
to Netherlands producers,
reducing to a minimum the
indemnity granted to Italian producers;

In so doing,

Form of order sought

— The decision of

the Fourth Board of Appeal dated 15

February 2007 shall be annulled;

— the Court shall confirm the decision of the Cancellation
Division and declare that the Community trade mark No
802 793 ‘VISIBLE WHITE’ remains registered;

— the applicant receives an award of costs in respect of the
request for a declaration of invalidity, a reversal of the award
of the costs made in the Board's decision, and an award of
costs in respect of this application.

— misinterpretation and infringement of Article 14 of Regu-

lation No 2777/75 and manifest error of assessment.

Pleas in law and main arguments

In the applicant's view, contrary to the view of the defen-
dant, Article 14 of the regulation at issue does not apply
only when the imbalances on the market are caused by the
fact that it is impossible for producers which are in an area
under surveillance and protection to have access to the
market outside that area.
In fact, the Commission could
adopt exceptional support measures to restabilise the market
affected by restrictions on free circulation which result from
the application of measures intended to prevent the spread
of animal disease, irrespective of whether those restrictions
relate to products entering or those exiting a particular area;

— lastly, also the breach of the principles of sound administra-

tion, impartiality, fairness and transparency.

(1) OJ L 282 of 1.11.1975, p. 77.

Action brought on 30 April 2007 — Colgate-Palmolive v
OHIM — CMS Hasche Sigle (VISIBLE WHITE)

(Case T-136/07)

(2007/C 140/64)

Language in which the application was lodged: English

Parties

Registered Community trade mark subject of
declaration of
goods in class 3 — Community trade mark No 802 793

invalidity: The word mark ‘VISIBLE WHITE’

the application for a
for

Proprietor of the Community trade mark: The applicant

Party requesting the declaration of invalidity of the Community trade
mark: CMS Hasche Sigle

Decision of the Cancellation Division: Rejection of the request for a
declaration of invalidity

Decision of the Board of Appeal: Annulment of the Cancellation
Division's decision and declaration of invalidity of the Com-
munity trade mark

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council
Regulation No 40/94 as the Board of Appeal wrongly consid-
ered both the element ‘VISIBLE’ and the element ‘WHITE’ as
descriptive in relation to ‘toothpaste’ as well as ‘mouthwash’ and
considered the combination as a whole descriptive and devoid
of distinctive character.

Action brought on 4 May 2007 — General Technic-Otis v
Commission

(Case T-141/07)

(2007/C 140/65)

Language of the case: French

Applicant: Colgate-Palmolive Co.
(New York, United States)
(represented by: M. Zintler, H. Harmeling and K.-U. Plath,
lawyers)

Parties

Applicant: General Technic-Otis Sàrl (Howald, Grand Duchy of
Luxembourg) (represented by: M. Nobusch, lawyer)

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

Defendant: Commission of the European Communities