Case T-454/07: Action brought on 7 December 2007 — Prym 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

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)

C 51/46

EN

Official Journal of the European Union

23.2.2008

— Erroneous application of the Leniency Notice of 2002 (2), as

the reduction of the fine by 30 % was too low.

Action brought on 14 December 2007 — Centre d'Etude et
de Valorisation des Algues v Commission of the European
Communities

In connection with the allegation of trilateral cooperation in the
sector of zip fasteners, it is submitted as follows:

— Unlawful taking into account of

the conduct of a joint
venture of the first and second applicants and erroneous
calculation of the fine imposed on the third applicant;

— Infringement of Section C or D of the Leniency Notice of

1996 (3).

With regard to the allegation of bilateral cooperation with an
undertaking of the Coats group, it is submitted as follows:

— Infringement of Article 23(2) of Regulation No 1/2003,
since that cooperation and one of the infringements pena-
lised by Commission Decision C(2004) 4221 final of
26 October 2004 (Case COMP/F-1/38.338 — PO/Needles)
were split up into two separate infringements, although they
should be treated as a single infringement;

— Infringement of the ne bis in idem principle by imposing a

second fine in respect of the same act;

— Infringement of Article 253 EC by failing to provide suffi-
cient reasons for the splitting up of a single infringement;

— Infringement of the principle of cooperation and of equal

treatment.

With regard to the determination of the fine, the following is
submitted:

— Infringement of the Guidelines on the method of setting
fines (4) and of the principle of proportionality and of the
principle of equal treatment;

— Infringement of Article 253 EC by failing to provide suffi-
cient reasons for the setting of the starting amount and for
the definition of the objectively relevant markets;

— In the alternative, infringement of the principle of propor-
tionality by the excessive overall burden imposed on the
applicants and failure to provide adequate reasons.

(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 on immunity from fines and reduction of fines

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

(3) Commission Notice on the non-imposition or reduction of fines in

cartel cases (OJ 1996 C 207, p. 4).

(4) 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).

(Case T-455/07)

(2008/C 51/86)

Language of the case: French

Parties

Applicant: Centre d'Etude et de Valorisation des Algues (CEVA)
(Pleubian, France) (represented by: J.-M. Peyrical, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Principally, declare that

the procedure is

irregular and
that there has been an infringement of the right to be heard
and,
debit note
No 3240909271, dated 4 October 2007, and order the
Commission to reimburse that note to CEVA;

the Commission's

therefore,

annul

— In the alternative, declare that the errors noted in the RAIA
audit report are not so serious that Article 3.5 of Annex II
to the contract may be applied to them, annul the Commis-
sion's debit note No 3240909271, dated 4 October 2007,
to the extent
the
amounts paid to CEVA under the BIOPAL contract and
order the Commission to reimburse that note to CEVA;

reimbursement of

it seeks full

that

— In the very much further alternative, appoint an expert of
the Court's choice whose mission will be: to take CEVA's
method of calculation; apply that method to the BIOPAL
contract and to the reality of the costs in the expenditure
accounts; express as a percentage the difference between the
amount of the errors in the recording of working time as
submitted to the Commission and the amount of
that
working time as recorded under the method of calculation
now applicable to CEVA; carry out an assessment of the
direct working time necessary to carry out CEVA's missions
in the framework of the BIOPAL contract; state whether that
real working time, needed to carry out those missions, could
be less than the 5 796,67 direct hours calculated by CEVA.

Pleas in law and main arguments

In the present action, the applicant is seeking the annulment of
the debit note whereby the Commission demanded reimburse-
ment of all the payments on account made to the applicant in
the framework of BIOPAL contract No QLK5-CT-2002-02431,
concerning the key action ‘Sustainable Agriculture, Fisheries and
Forestry, and Integrated Development of Rural Areas including
Mountain Areas’, which is part of
the ‘Quality of Life and
management of living resources’ (1)