Case C-322/07 P: Appeal brought on 12 July 2007 by Papierfabrik August Koehler AG against the judgment of the Court of First Instance (Fifth Chamber) of 26 April 2007 in Joined Cases T-109/02 Bolloré v Commission , T-118/02 Arjo Wiggins Appleton v Commission , T-122/02 Mitsubishi HiTec Paper Bielefeld v Commission , T-125/02 Papierfabrik August Koehler v Commission , T-126/02 M-real Zanders v Commission , T-128/02 Papeteries Mougeot v Commission , T-129/02 Torraspapel v Commission , T-132/02 Distribuidora Vizcaína de Papeles v Commission , and T-136/02 Papelera Guipuzcoana de Zicuñaga v Commission
Date: 2007-09-22
Institutions: Court of Justice
Subjects: European Commission, action for annulment (EU), appeal, competition, control of restrictive practices, fine, offence, pulp and paper industry, tax system, type of business

22.9.2007

EN

Official Journal of the European Union

C 223/5

Questions referred

1. Is a Community trade mark protected in the whole of the
Community as a ‘trade mark with a reputation’
for the
purposes of Article 9(1)(c) of Council Regulation (EC)
No 40/94 of 20 December 1993 on the Community trade
mark (1) (Regulation 40/94) if it has a ‘reputation’ only in
one Member State?

2. If the answer to the first question is in the negative:

is a
mark which has a ‘reputation’ only in one Member State
protected in that Member State under Article 9(1)(c) of Regu-
lation 40/94, so that a prohibition limited to that Member
State may be issued?

(1) OJ 1994 L 11, p. 1.

— Annulment of Commission Decision 2004/337/EC of
20 December 2001 relating to a proceeding pursuant to
Article 81 of the EC Treaty and Article 53 of the EEA
Agreement (Case COMP/E-1/36.212 — Carbonless paper) (1)
in so far as it affects the appellant;

In the alternative: a reduction of the fine imposed on the
appellant in Article 3 of that decision;

— In the alternative to the second indent above: referral of the
matter back to the Court of First Instance for determination
in accordance with the judgment of the Court of Justice;

— In any event, an order for the Commission to pay the costs
incurred by the appellant both before the Court of First
Instance and the Court of Justice.

Appeal brought on 12 July 2007 by Papierfabrik August
Koehler AG against the judgment of the Court of First
Instance (Fifth Chamber) of 26 April 2007 in Joined Cases
T-109/02 Bolloré v Commission, T-118/02 Arjo Wiggins
Appleton v Commission, T-122/02 Mitsubishi HiTec Paper
Bielefeld v Commission, T-125/02 Papierfabrik August
Koehler v Commission, T-126/02 M-real Zanders v Commis-
sion, T-128/02 Papeteries Mougeot v Commission, T-129/02
Torraspapel v Commission, T-132/02 Distribuidora Vizcaína
Papelera
de

T-136/02
Guipuzcoana de Zicuñaga v Commission

v Commission,

Papeles

and

(Case C-322/07 P)

(2007/C 223/05)

Language of the case: German

Parties

Appellant: Papierfabrik August Koehler AG (represented by: I.
Brinker, S. Hirsbrunner,
J. Schwarze, University
lawyers,
Professor)

Other party to the proceedings: Commission of
Communities

the European

Pleas in law and main arguments

The appellant raises the following pleas:
the Court of First
Instance's reasoning in relation to the setting of the amount of
the fine infringes both the principles of equal treatment and
proportionality. The appellant thus claims that substantive Com-
munity law has been infringed. The Court erroneously assumed
it to be insignificant that the appellant is a family business and,
in comparison with the other undertakings, does not have
direct access to capital markets.
Instead the Court wrongly
pointed out that an undertaking cannot rely to its advantage on
an infringement of law which was committed to the benefit of
other undertakings. However, the appellant did not rely on that
argument in any way. The Court did not appropriately assess
the structural differences between the appellant and the other
undertakings which are accused of committing an infringement.
The Court thereby infringed the principles of equal treatment
and proportionality.

Moreover, the Court wrongly assumed that the appellant was a
party to the infringement in the period prior to October 1993.
In that regard, the Court gave insufficient proof, assessed that
proof contradictorily and, moreover, falsified it. It also infringed
the presumption of
innocence and the appellant's rights of
defence. The appellant thus claims that there was a procedural
error. The Court's reasoning for its finding that the official meet-
ings of
the AEMCP association between January 1992 and
September 1993 served as a setting for fixing prices on the
European market is insufficient and contradictory. Furthermore,
the appellant alleges that the Court committed legal errors in
assuming that the appellant participated in unofficial meetings,
in which prices at national level were discussed.

Form of order sought

(1) OJ 2004 L 115, p. 1.

— Annulment of the judgment of the Court of First Instance
(Fifth Chamber) of 26 April 2007 (Case T-125/02) in so far
as it affects the appellant;