Case T-141/07: Action brought on 4 May 2007 — General Technic-Otis v Commission
Date: 2007-05-04
Institutions: Court of First Instance
Subjects: European Commission, Luxembourg, action for annulment (EU), fine, invitation to tender, lift, restriction on competition, restrictive trade practice

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

C 140/40

EN

Official Journal of the European Union

23.6.2007

Form of order sought

The applicant claims that the Court should:

— annul on the basis of Article 230 EC the decision adopted
by the Commission on 21 February 2007 relating to a
proceeding under Article 81 EC and Article 53 EEA in Case
COMP/E-1/38.823 — Elevators and Escalators, in so far as it
concerns GTO;

— in the alternative, annul or reduce, on the basis of Article

229 EC, the fine imposed on it by that decision;

— order the Commission to pay all the costs.

Pleas in law and main arguments

By this action, the applicant is seeking the partial annulment of
Commission decision C(2007)512 final of 21 February 2007
relating to a proceeding under Article 81 EC and Article 53
EEA (Case COMP/E-1/38.823 — PO/Elevators and Escalators),
concerning a cartel on the market for the installation and main-
tenance of
lifts and escalators in Belgium, Germany, Luxem-
bourg and the Netherlands, and relating to the manipulation of
calls for
the award of
projects and sales contracts, the installation, maintenance and
modernisation of machinery and the exchange of information,
in so far as it concerns the applicant. In the alternative, the
applicant seeks annulment or reduction of the fine imposed on
it by the contested decision.

tenders, market-sharing, price-fixing,

In support of its claims, the applicant raises seven pleas.

In the first plea, the applicant submits that the Commission
erred in fact and in law in application of the rules on the calcu-
lation of fines in so far as it held that the incriminating practices
constituted a ‘very serious’ infringement. The applicant alleges
that the starting amount of the fine should consequently be
reduced owing to the limited geographical scope of the market
in question and the limited impact of the offending practices on
the market in question.

In its second plea, the applicant claims that the Commission
erred in law and in fact in so far as it did not take into account
the applicant's actual economic capacity to cause damage. It also
maintains that the Commission should have taken into account,
when fixing the amount of the fine, the applicant's status as a
small or medium-sized undertaking, managed entirely indepen-
dently and which, consequently, is incapable of causing signifi-
cant damage on the market.

In the third plea, the applicant submits that the Commission
erred in law and in fact in so far as it did not limit the amount
of the fine to 10 % of its turnover and that it was wrong to
take into account the turnover of the parent companies for the
purpose of calculating the maximum fine to impose on the
applicant.

The fourth plea alleges infringement by the Commission of the
principle of equal treatment in so far as it did not apply the
principles on liability consistently to all the members of the
cartel in question. The applicant maintains that the Commission
attributed the offending practices to its parent companies while
it did not do so in respect of another company against which a
infringement was made in the same decision,
finding of

although that company was in a comparable situation to the
applicant's as regards the control exercised by the parent compa-
nies.

By its fifth plea, the applicant submits that the Commission
erred in fact in so far as it did not grant it a reduction of 50 %
of the fine under the Leniency Notice (1). The applicant main-
its cooperation with the Commission was close,
tains that
consistent and particularly wide in its scope and that it warrants
the maximum reduction in the fine provided for by the Leniency
Notice, that is, 50 %.

the principle of

The sixth plea put forward by the applicant alleges infringement
legitimate expectations in so far as the
of
Commission did not grant
it a supplementary reduction of
10 % of the fine in return for not contesting the facts. The
applicant claims that the notification of the statement of objec-
tions and the Commission's practice in taking decisions gave
rise to the justified expectation on its part that it would obtain
on that basis a reduction of 10 %, and not merely 1 % as
granted in the contested decision.

The seventh plea alleges infringement of the principle of propor-
tionality of penalties, in so far as the fine imposed on the appli-
cant is not justified in the light of the infringement in question,
and above all having regard to what is alleged to be its limited
impact on the market and the fact it was committed by a
company of limited size.

(1) Commission notice on immunity from fines and reduction of fines

in cartel cases, OJ 2002 C 45, p. 3.

Action brought on 4 May 2007 — General Technic v
Commission

(Case T-142/07)

(2007/C 140/66)

Language of the case: French

Parties

Applicant: General Technic Sàrl (Luxembourg, Grand Duchy of
Luxembourg) (represented by: M. Nosbusch, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

— annul on the basis of Article 230 EC the decision adopted
by the Commission on 21 February 2007 relating to a
proceeding under Article 81 EC and Article 53 EEA in Case
COMP/E-1/38.823 — Elevators and Escalators, in so far as it
concerns GT;