Case T-137/07: Action brought on 2 May 2007 — Portela — Comércio de artigos ortopédicos e hospitalares v Commission
Date: 2007-07-07
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), indemnification, medical device, product quality, third-party insurance, withdrawal from the market

7.7.2007

EN

Official Journal of the European Union

C 155/25

Pleas in law and main arguments

Defendant: Commission of the European Communities

Applicant for a Community trade mark: RENTRAK Corp.

Community trade mark concerned: Word mark PPT (Services for
the distribution of video-cassettes on the basis of shared revenue
or payment for use; rental of videos and DVDs; rental of video-
recorders and DVD players; distribution of videotapes; on-line
rental of videos, DVDs, video-recorders and DVD players by
means of the world wide information net, Class 41)

Proprietor of the mark or sign cited in the opposition proceedings: The
applicant

Mark or sign cited in opposition: Portuguese national trade mark
No 330 375, presenting the verbal element ‘PPTV’
(services
relating to ‘Education; providing of
training; entertainment;
sporting and cultural activities’ within Class 41).

Decision of the Opposition Division: Upholding of the opposition
and rejection of the application for registration of a Community
trade mark

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

Pleas in law:

Similarity of services: the Board of Appeal's interpretation to the
effect that the services relating to the trade mark at issue, being
distribution services only, are not directed at the same consu-
mers, so that they have no connection whatsoever with the
services provided by the applicant, is too restrictive.

Graphic similarity and likelihood of confusion: The three first
letters of each of the two distinctive signs are exactly the same.
Neither of the trade marks has any immediate meaning for
Portuguese consumers, so that they will be taken to be fanciful
signs and therefore to be original.

The likelihood of confusion includes the risk of association.

Even if Portuguese consumers did succeed in distinguishing the
marks, it is not inconceivable that they would ascribe to them
the same origin or believe that
there were commercial,
economic or organisational relations between the proprietor
undertakings, which might constitute unfair competition even if
that were not the intention of the applicant for registration of
the trade mark at issue.

Form of order sought

— Annul the defendant's decision of 28 February 2007 and
order the European Commission to grant the applicant an
exemption for the crane vessel ‘Niclas’, in accordance with
Article 4(6) of Council Regulation (EC) No 718/1999 of
29 March 1999 on a Community-fleet capacity policy to
promote inland waterway transport;

— Order the defendant to bear the costs of the proceedings.

Pleas in law and main arguments

The applicant challenges the decision of the Directorate-General
for Energy and Transport of the Commission (2007) D/200972
of 28 February 2007 in respect of the application which it
made pursuant to Article 4(6) of Regulation (EC) No 718/
1999 (1) for an exemption for the crane vessel
‘Niclas’. The
applicant applied for that specialised vessel to be exempted from
the application of the ‘old-for-new’ rule. In the contested deci-
sion the defendant decided not to grant the relevant exemption
for the vessel ‘Niclas’.

In support of its action the applicant claims, in particular, that
the crane vessel ‘Niclas’ is not a vessel which is subject to Regu-
lation No 718/1999. It submits, in that regard, that the ship
concerned is not in possession of a certificate of entitlement to
operate on the Rhine, which is however a requirement for the
transportation of goods on the European waterways.
legal
According to the applicant,
is no
different from storage vessels under Article 2(2)(f) of Regulation
No 718/1999 or from hopper vessels and floating construction
plants within the meaning of Article 2(2)(g) of that regulation.

the crane vessel

‘Niclas’

(1) Council Regulation (EC) No 718/1999 of 29 March 1999 on a Com-
munity-fleet capacity policy to promote inland waterway transport.

Action brought on 2 May 2007 — Portela — Comércio de
artigos ortopédicos e hospitalares v Commission

Action brought on 24 April 2007 — Mohr & Sohn v
Commission

(Case T-131/07)

(2007/C 155/50)

Language of the case: German

Parties

(Case T-137/07)

(2007/C 155/51)

Language of the case: Portuguese

Parties

Applicant: Paul Mohr & Sohn, Baggerei und Schiffahrt (Nieder-
walluf
(represented by: F. von Waldstein,
lawyer)

(Rhg), Germany)

Applicant: Portela — Comércio de artigos ortopédicos e hospita-
(represented by: C. Mourato,
lares, Lda.
lawyer)

(Queluz, Portugal)

Defendant: the Commission of the European Communities

C 155/26

EN

Official Journal of the European Union

7.7.2007

Form of order sought

— that

the Court of First

Instance should impose on the
Commission the obligation to act
in accordance with
Article 14b of Council Directive 93/42/EEC of 14 June
1993 (1),
in particular by requiring the notified body,
through the German State, to activate the civil liability insur-
ance provided for in point 6 of Annex XI to Directive 93/42
of 14 June and in point 7(a) of the document MEDDEV
2.10-2 Rev 1 April 2001, so as to indemnify the applicant
for the damage sustained;

— or, in case the applicant is not indemnified for the damage
sustained by means of that compulsory civil liability insur-
ance, an order that the Commission should pay the appli-
cant the sum of EUR 2 419 665,42 as compensation for
the damage sustained;

— an order that the Commission should pay the applicant
default interest calculated on the basis of the reference rate
of the European Central Bank, increased by two percentage
points, from the date this action was lodged;

— an order that the Commission should pay the costs,

in
accordance with Article 87(2) of the Rules of Procedure of
the Court of First Instance, in particular expenses necessarily
incurred by the applicant for the purpose of the proceed-
ings, in particular the travel and subsistence expenses and
the remuneration and expenses of
in accordance
with Article 91(b) of those Rules.

lawyers,

Pleas in law and main arguments

In carrying on its commercial activity, the applicant, a commer-
cial company with its seat in Portugal, imported from Taiwan in
the first half of 2002 two batches of 5 184 digital thermo-
meters manufactured by the undertaking Geon Corporation
(‘Geon’) which proved to be faulty.

Geon's system of quality control was monitored by the TÜV
Rheinland (Technischer Überwachungs-Verein, Technical Monitoring
Association of the Rhineland) which, as the notified body respon-
sible for that process, was under a legal duty to carry out
the purpose of
adequate inspections and assessments
making sure that the manufacturer applied the approved quality
system, possibly making unannounced visits to the manufac-
turer during which it could, if necessary, carry out or ask for
tests in order to check that the quality control system worked
properly, in accordance with Articles 4.2 and 4.3 of Annex V to
the Directive.

for

The notified body in question, TÜV Rheinland, was unable to
ensure that the product it certified was fit to be marketed safely
in Europe, being unwilling also to assume its repsonsibilities
when alerted by the applicant to the serious problems caused by
that product.

That body thus infringed point 4 of Annex V to the Directive
and points 1, 2 and 4,
in particular 4.1, 4.3 and 4.4 of
Module D (production quality assurance) in Council Decision
93/465/EEC of 22 July 1993 (2).

The procedure to be adopted by the Commission and the
Member States when any doubt arises as to the competence of a
notified body consists, as stated in the first subparagraph of

point 6.2.2. of the Guide to the implementation of directives
based on the new approach and the global approach, in reasses-
sing that body's ability to undertake the actions for which it was
notified.

It fell within the Commission's powers to require the competent
German authority, in accordance with point A, Chapter I of the
Annex to Decision 93/465, to take appropriate measures as
provided for by the document MEDDEV 2.10-2 Rev 1 of April
2001, it being obliged to act with regard to the body it had
itself designated.

For circumstances such as those of the present case, in which
there transpires a fault
in the procedure for assessing the
production quality of the undertaking in question which leads
to the placing on the market of goods that are not in confor-
mity with requirements and that pose a threat to the health of
consumers, as happened, point 6 of Annex XI to the Directive
provides that the notified body must take out civil liability insur-
ance to be activated when any accident occurs, covering in par-
ticular those cases in which the notified body is obliged to with-
draw or suspend certificates, as is also provided by point 7 of
document MEDDEV 2.10-2 Rev 1.

the

the national bodies
responsibilities of
Regardless of
entrusted with surveillance of the market in the examination of
the notified body's competence, and despite the fact that the
Commission may not act directly in respect of that notified
body,
it fell to the Commission, automatically advised of the
together with the
serious problem that had arisen,
Member State in whose territory the body in question had its
headquarters, obliging it to take the corrective measures neces-
sary in order that the safety and health of European citizens
in accordance with Article 152(1) of the
might be assured,
EC Treaty.

to act

requested only that

für Arzneimittel und Medizinprodukte,

The applicant
the Commission should
oblige the competent German national authority, the BfArM
(Bundesinstitut
the
Federal Institute for Drugs and Medical Devices), through the
German State,
liability insurance
provided for by law, so allowing the applicant to be compen-
sated for the damage caused by the placing on the market of
goods carrying the EC marking when they were not in fact in
conformity.

to make use of

the civil

Point 8.3.3 of the Guide states that ‘The Commission is respon-
sible for administering the safeguard clause at Community level,
and for ensuring that it applies to the whole of the Community.’

Infarmed (Instituto Nacional da Farmácia e do Medicamento, the
National
Institute of Pharmacy and Medicine) suspended the
marketing in Portugal of the goods in question and ordered
them to be withdrawn in accordance specifically with Article
14b of the Directive.

The Commission thus infringed the following provisions of law:
Article 152(1) of the EC Treaty, Article 14b of Directive 93/42,
points 6.2.2, first paragraph, 8.2.2, 8.2.3., 8.3.2 and 8.3.3 of
the Guide to the implementation of directives based on the new
approach and the global approach and point 1, Chapter I, of the
Annex to Decision 93/465.

7.7.2007

EN

Official Journal of the European Union

C 155/27

By failing to fulfil
its obligations under the abovementioned
provisions of law, the Commission has prevented the applicant
from being compensated for the loss sustained by means of
recourse to the abovementioned compulsory civil liability insur-
ance.

The applicant had expected to sell at least 500 000 thermo-
meters a year.

From the moment the decision was taken to withdraw those
goods from the market, the doors of that market were closed to
the applicant, since its image was irreparably associated with the
non-conformity [with the requirements] of the goods it had
placed on the market.

The damage suffered by the applicant amounts to a total of
EUR 2 419 665,42.

(1) Council Directive 93/42/EEC of 14 June 1993 concerning medical

devices (OJ 1993 L 169, p. 1).

(2) OJ 1993 L 220, p. 23.

Action brought on 4 May 2007 — Schindler Holding and
Others v Commission

(Case T-138/07)

(2007/C 155/52)

Language of the case: German

Parties

(Brussels, Belgium), Schindler Sàrl

Applicants: Schindler Holding Ltd (Hergiswil, Switzerland),
Schindler Management AG (Ebikon, Switzerland), S.A. Schindler
N.V.
(Luxembourg, Luxem-
bourg), Schindler Liften B.V.
(The Hague, Netherlands) and
Schindler Deutschland Holding GmbH (Berlin, Germany) (repre-
sented by: R. Bechtold, W. Bosch, U. Soltész and S. Hirsbrunner,
lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul the decision of 21 February 2007 in Case COMP/E-1/
38.823 — PO/Elevators and Escalators, pursuant to the first
paragraph of Article 231 EC;

Pleas in law and main arguments

In the contested decision,

The applicants are challenging Commission Decision C(2007)
512 final of 21 February 2007 in Case COMP/E-1/38.823 —
PO/Elevators and Escalators.
fines
were imposed on the applicants and other undertakings on the
ground of their participation in cartels relating to the installa-
tion and maintenance of
in Belgium,
Germany, Luxembourg and the Netherlands. In the view of the
Commission, the undertakings concerned acted in breach of
Article 81 EC.

lifts and escalators

In support of
following pleas in law:

their action,

the applicants put

forward the

— Infringement of

the principle of

certainty by
Article 23(2) of Regulation (EC) No 1/2003 (1) inasmuch as
that provision confers on the Commission unlimited discre-
tion in setting fines;

legal

— Breach of the prohibition of retroactive effect by the fine

imposed by the Commission;

— Lack of effectiveness of the Guidelines on the method of
setting fines (‘the 1998 Guidelines’) (2)
they fail
adequately to take account of individual circumstances in
connecting the basic amounts of fines with the respective
infringements and confer too great a discretion on the
Commission in determining fines;

in that

— Illegality of the evidence adduced by cooperative undertak-
ings on the basis of the Notice on immunity from fines and
reduction of fines (3) by reason of the infringement of the
nemo tenetur principle, of the right against self-incrimination,
of the in dubio pro reo principle and the principle of propor-
tionality, and by reason of
in which the
Commission exceeded its competence by adopting that rule;

the manner

— Infringement of the principle of the division of powers and

of the requirements of due process;

— Illegality of the contested decision under international law
by reason of the expropriatory nature of the fines imposed;

— Infringement of the 1998 Guidelines on the ground that the
basic amounts used to calculate the fines were unduly high
in the light of the specific offences;

— Infringement of the 1998 Guidelines on the ground that
inadequate account/no account was taken of extenuating
circumstances;

— Infringement of

the 2002 rules relating to cooperative
undertakings on grounds of unduly low cooperation
discounts or unjustified refusal of such discounts;

— Disproportionate nature of the level of the fines;

— in the alternative, reduce the fines imposed in that decision;

— order the Commission to pay the costs of the applicants, in
accordance with Article 87(2) of the Rules of Procedure of
the Court of First Instance.

— Illegality of the contested decision in so far as it is addressed
to Schindler Holding Ltd and Schindler Management AG on
the ground that,
in the absence of an international-law
agreement with Switzerland, it was not effectively notified to
those companies;