Case T-448/07: Action brought on 7 December 2007 — YKK and Others v Commission
Date: 2007-12-07
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), fine, haberdashery, price agreement, restrictive trade practice

C 51/44

EN

Official Journal of the European Union

23.2.2008

Re:

Action brought on 7 December 2007 — YKK and Others v
Commission

Application for suspension of
the operation of Commission
Decision 2007/437/EC of 19 June 2007 concerning the non-
inclusion of haloxyfop-R in Annex I
to Council Directive
91/414/EEC and the withdrawal of authorisations for plant
protection products containing that substance (OJ 2007 L 163,
p. 22) pending the full resolution of the dispute in the main
proceedings.

(Case T-448/07)

(2008/C 51/83)

Language of the case: English

Operative part of the order

Parties

1. The application for interim measures is dismissed.

2. Costs are reserved.

Applicants: YKK Corp. (Tokyo, Japan), YKK Holding Europe BV
(Sneek, Netherlands), YKK Stocko Fasteners GmbH (Wuppertal,
Germany)
(represented by: H. Kaneko and C. Vennemann,
lawyers)

Defendant: Commission of the European Communities

Form of order sought

Order of the President of the Court of First Instance of
14 December 2007 — Portuguese Republic v Commission
of the European Communities

— Annul the contested decision in so far as it concerns each of

the applicants;

— as a consequence, cancel the fines imposed on each of the

(Case T-387/07 R)

applicants;

(Interim measures — Reduction of assistance — Application
to suspend operation Lack of urgency)

(2008/C 51/82)

Language of the case: Portuguese

Parties

Applicant: Portuguese Republic (represented by: L. Fernandes, S.
Rodrigues and A. Gattini, agents)

Defendant: Commission of the European Communities (repre-
sented by: P. Guerra e Andrade and L. Flynn, agents)

Re:

Application to suspend operation, on the one hand, of Commis-
sion Decision C(2007) 3772 of 31 July 2007 reducing the assis-
tance granted by the European Regional Development Fund for
the global grant ‘SGAIA’ (global grant for local development)
pursuant to Decision C(95) 1769 of the European Commission
of 28 July 1995 and, on the other, of the alleged payment order
contained in a debit note of 17 September 2007.

Operative part of the order

1. The application for interim measures is dismissed.

2. Costs are reserved.

— in the alternative, annul Article 2 of the contested decision
in so far as it concerns each of the applicants, or, at least
cancel or reduce the fines imposed on each of the appli-
cants;

— order the Commission to pay the costs.

Pleas in law and main arguments

the

seek

applicants

annulment

The
Commission
Decision C(2007) 4257 final of 19 September 2007 in Case
COMP/E-1/39.168 — PO/Hard Haberdashery: Fasteners, by
which the Commission found that the applicants, together with
other undertakings, had infringed Article 81 EC by:

of

— agreeing on coordinated price increases and exchanging
information on prices and implementation of
and

increases within the

‘Baseler, Wuppertaler

confidential
price
Amsterdamer cooperation’;

— fixing prices, monitoring price increases and allocating
customers in a bilateral cooperation with Prym Fashion; and

— exchanging price information, discussing prices and agreeing
on a methodology to fix minimum prices in a tripartite
cooperation with Coats and Prym.

In support of their application, the applicants submit that the
1,25 multiplier for deterrence imposed on them breaches the
principle of proportionality.

Concerning the ‘Baseler, Wuppertaler and Amsterdamer coop-
eration’, the applicants allege that, with respect to YKK Stocko
Fasteners, the Commission misapplied Article 23(2) of Regu-
lation 1/2003 (1), according to which the fine to be imposed on
an undertaking shall not exceed 10 % of its total turnover in
the preceding business year. Furthermore, the increase by 1,25
for deterrence is, according to the applicants, not justified for
the period prior to the acquisition of YKK Stocko Fasteners by
YKK Holding Europe.

23.2.2008

EN

Official Journal of the European Union

C 51/45

Concerning the bilateral cooperation between Prym Fashion and
the applicants YKK Stocko Fasteners and YKK Corp., the appli-
cants contend that the Commission was incorrect to assume
that the cooperation was of a worldwide dimension.

Concerning the tripartite cooperation between Coats, Prym and
the applicant YKK Holding Europe, the applicants consider:

— that the Commission failed to prove to the requisite standard
that the discussions about harmonising prices at the five zip
fastener meetings in 1998 and 1999 constitute an agree-
ment or concerted practice in violation of Article 81 EC;

— that if the discussions at the five zip fastener meetings in
1998 and 1999 were to constitute an infringement of
Article 81 EC, the applicants should have been granted a
reduction of fines for their cooperation with the Commis-
sion under the Commission's Leniency Program;

— that these discussions are not sufficient to be categorised as

a ‘very serious’ infringement;

— that

the fine imposed by the Commission is dispropor-

tionate to the nature of any possible infringement; and

— that the Commission failed to consider the impact of such

an infringement on the EC market.

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The Board of Appeal infringed essential procedural
in part by
requirements and Council Regulation No 40/94,
failing to declare that the appeal should have been translated
into the applicant's first
language, Swedish, and in part by
upholding the appeal and continuing to correspond in English.
The Board of Appeal thus failed to comply with the principles
of the protection of legitimate expectations and of the right to
equal treatment.

Action brought on 7 December 2007 — Prym and Others
v Commission

(Case T-454/07)

(2008/C 51/85)

Language of the case: German

(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).

Parties

Action brought on 7 December 2007 — Ecolean Research
& Development v OHIM

(Case T-452/07)

(2008/C 51/84)

Language in which the application was lodged: Swedish

Parties

Applicants: William Prym GmbH & Co KG (Stolberg, Germany),
Prym Inovan GmbH & Co KG (Stolberg, Germany), EP Group S.
A. (Comines-Warneton, Belgium) (represented by: H.-J. Niemeyer
and C. Herrmann, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul the decision of the defendant of 19 September 2007,

in so far as it is addressed to the applicants;

— In the alternative, reduce the fines imposed on the applicants
under Article 2 of the decision to a reasonable amount;

— Order the defendant to pay the costs.

Applicant: Ecolean Research & Development A/S (Copenhagen,
Denmark) (represented by L.-E. Ström, lawyer)

Pleas in law and main arguments

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

Form of order sought

— Referral back to the Board of Appeal for a fresh examina-

tion.

Pleas in law and main arguments

Community trade mark concerned: Word mark CAPS for goods in
Classes 7, 16 and 17 — application No 4 957 131

Decision of the Examiner: Rejection of the application

The applicants contest Commission Decision C(2007) 4257
final of 19 September 2007 in Case COMP/E-1/39.168 —
PO/Hard Haberdashery — Fasteners. Pursuant to that decision,
companies in the Prym group were fined for infringement of
Article 81 EC in respect of three separate infringements in the
hard haberdashery sector, whereas the Commission found a
total of four infringements.

The applicants base their action on eleven pleas in law.

In connection with the allegation of multilateral cooperation in
relation to ‘other
is
submitted as follows:

fasteners’ and attaching machines,

it

— Infringement

of Article

(EC)
No 1/2003 (1), as one set of actions was split up into two
separate infringements;

of Regulation

23(2)