Case T-154/07: Action brought on 8 May 2007 — ThyssenKrupp Liften v Commission
Date: 2007-05-08
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), fine, lift, restriction on competition, unlawful agreement

7.7.2007

EN

Official Journal of the European Union

C 155/35

that

the applicants submit

In respect of the infringement which took place in the Nether-
lands,
the Commission erred in
denying them any reduction of the fine and in setting the fine
at EUR 79 750 000. In particular, the applicants suggest, first,
that the Commission misapplied the 2002 Leniency Notice in
that it failed to reduce the applicants' fine in recognition of the
fact that the applicants provided information and cooperated
during the administrative procedure. Secondly, the applicants
allege that the Commission disregarded the principle of legiti-
mate expectations and of equal treatment. Finally, the applicants
put forward that the Commission has improperly applied the
1998 Fining Guidelines both in failing to take into account the
favour, and in
attenuating circumstances in the applicants'
failing to properly acknowledge the fact that the applicants did
not contest the facts.

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

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

(2) OJ 1998 C 9, p. 3.

Pleas in law and main arguments

Community trade mark concerned: A figurative mark representing a
watch for goods in class 14 (registration No 2542694).

Decision of the Examiner: Application refused.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law:

— Infringement of Article 7(1)(b) of Regulation No 40/94, as
the mark applied for does not lack the requisite distinctive
character;

— Infringement of Article 7(3) of Regulation No 40/94, as, due
to an error in law, the mark applied for has been held not to
have become distinctive as a result of the use which has
been made of it.

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

Community trade mark (OJ 1994 L 11, p. 1).

Action brought on 7 May 2007 — Lange Uhren v OHIM
(Figurative mark representing a watch)

(Case T-152/07)

(2007/C 155/63)

Language of the case: German

Parties

Applicant: Lange Uhren GmbH (Glashütte, Germany)
sented by M. Schaeffer, Rechtsanwalt)

(repre-

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

Form of order sought

— annul the decision of the First Board of Appeal of the Office
for Harmonisation in the Internal Market of 15 February
2007 in Case R 1176/2005-1;

— declare that the provisions of Article 7(1)(b) of Regulation
(EC) No 40/94 (1) do not preclude publication of the Com-
munity trade mark applied for under No 2542694 for
goods in class 14 (‘luxury watches and chronometric instru-
ments; watchfaces for luxury watches’);

— in the alternative, declare that the Community trade mark
applied for under No 2542694 has become distinctive in
respect of the goods applied for in class 14 as a result of the
use which has been made of
in accordance with
it,
Article 7(3) of Regulation No 40/94;

— order the Office for Harmonisation in the Internal Market to

pay the costs.

Action brought on 8 May 2007 — ThyssenKrupp Liften v
Commission

(Case T-154/07)

(2007/C 155/64)

Language of the case: Dutch

Parties

Applicant: ThyssenKrupp Liften BV (Krimpen aan den IJssel,
Netherlands) (represented by: O.W. Brouwer and A.C.E. Stoffer,
lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul the contested decision in so far as it relates to the

applicant;

— in the alternative, reduce the fine imposed on the applicant;

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

Pleas in law and main arguments

The applicant is challenging Commission Decision C(2007) 512
final (Case COMP/E-1/38.823 — PO/Elevators and Escalators).

In support of its application the applicant invokes the same pleas
in law as those put forward in Case T-144/07 ThyssenKrupp
Liften Ascenseurs v Commission.

C 155/36

EN

Official Journal of the European Union

7.7.2007

The applicant also submits that, by increasing the basic amount
of the fine by a deterrence factor of 100 %, the Commission
infringed Article 23(1) of Regulation No 1/2003 (1) and the
guidelines for setting fines based thereon (2), as well as the prin-
ciples of proportionality and equality. The applicant contends
further that, contrary to Article 23(1) of Regulation No 1/2003
and the guidelines on fines, the Commission imposed a 50 %
increase in the fine in respect of repeat offences.

(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: Guidelines on the method of

setting
fines imposed pursuant to Article 15(2) of Regulation No 17 and
Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3).

Action brought on 7 May 2007 — COFAC v Commission

(Case T-158/07)

(2007/C 155/65)

Language of the case: Portuguese

Parties

Applicant: COFAC — Cooperativa de Formação e Animação
Cultural, crl
(represented by: Luís Gomes,
lawyer)

(Lisbon, Portugal)

Defendant: Commission of the European Communities

tion of the aid granted … and after the adjustments to the costs
and funding structures relating to the file in accordance with the
judicial decisions or the audits/re-examinations carried out in
respect of the bodies in question.’

None the less, the Portuguese legal proceedings brought against
the applicant ended in an inconclusive verdict that the prosecu-
tion was time-barred, from which of course no inference may
be drawn as to any reduction.

That having been said, the applicant has never been notified by
the national authorities of any final preparation arising out of
the audit or re-assessment, in the conclusions of which it played
no part, and it has never been able to defend itself against the
charges of failing to observe the criteria for costs and funding in
the file.

According to the settled case-law of the Court of First Instance,
a Commission decision reducing or cancelling financial assis-
tance granted by the ESF is capable of affecting the beneficiaries
of that assistance directly and individually.

The applicant has never been given the chance effectively to
make known its views to the Commission on the reduction of
the assistance, with the result that the Commission's contested
decision is vitiated by unlawfulness and must, accordingly, be
annulled.

the rights of

the
That decision was adopted in breach of
defence, which constitute a fundamental principle of Com-
munity law, according to which all addressees in respect of
whom decisions may be adopted adversely affecting their inter-
ests to an appreciable extent must be placed in a position in
which they can effectively make known their views on the
matters on which the decision at issue was based.

Form of order sought

Action brought on 7 May 2007 — COFAC v Commission

— annulment, pursuant

to Article 230 EC, of Commission
Decision D(2004) 24253 of 9 November 2004, reducing
the amount of the financial assistance granted by the Euro-
pean Social Fund (‘the ESF’) to the applicant by Decision
C(87) 0860 of 30 April 1987 (file No 880707 P1);

— an order that the Commission should pay the costs.

(Case T-159/07)

(2007/C 155/66)

Language of the case: Portuguese

Pleas in law and main arguments

Parties

On 1 March 2007 the applicant was notified of the Commis-
sion's decision to reduce by EUR 25 291,75 the financial assis-
tance granted to it by Decision C(87) 0860 of 30 April 1987,
on the ground that ‘evidence has come to light of irregularities
in the performance of certain vocational training actions co-
financed by the ESF, … after the conclusion of the criminal
prosecutions relating to the management and specific applica-

Applicant: COFAC — Cooperativa de Formação e Animação
Cultural, crl
(represented by: Luís Gomes,
lawyer)

(Lisbon, Portugal)

Defendant: Commission of the European Communities