Case T-461/07: Action brought on 19 December 2007 — Visa Europe and Visa International Service Association v Commission
Date: 2007-12-19
Institutions: Court of First Instance
Subjects: European Commission, United Kingdom, action for annulment (EU), electronic money, financial institution, fine, market access, restriction on competition

23.2.2008

EN

Official Journal of the European Union

C 51/49

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

Defendant: Commission of the European Communities

Other party to the proceedings before the Board of Appeal: Medion
AG (Essen, Germany)

Form of order sought

— The decision of 2 October 2007 of the Second Board of
Appeal
in Case R 141/2007-2 should be set aside in its
entirety and the case should be remitted to the OHIM for
registration of the applicant's trade mark;

— the respondent should be ordered to pay the costs of the

applicant.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The Community word mark
‘LIFE BLOG’ for goods and services in class 9, 38 and 41 —
application No 3 564 366

Proprietor of the mark or sign cited in the opposition proceedings:
Medion AG

Mark or sign cited: The national and international word marks
‘LIFE’ and ‘LIFETEC’, for goods and services in classes 1, 7, 8, 9,
10, 11, 16, 21, 28, 37, 38, 41 and 42; the national and interna-
tional word mark ‘LIFESAT’
for goods in Class 9 and the
national word mark ‘Lifesign’ for goods in Classes 9, 14 and 16

Decision of the Opposition Division: Rejected the application for
registration partially

Decision of
dismissed the appeal

the Board of Appeal: Upheld the opposition and

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation (EC) No 40/94.

Form of order sought

— Annul the decision in its entirety; alternatively

— annul Article 2 of the decision in its entirety, or in the alter-
native, reduce the fine there stated, as appropriate; and

— order the Commission to pay the costs.

Pleas in law and main arguments

By means of their application Visa Europe and Visa Interna-
tional Service Association (‘Visa’)
seek annulment under
Article 230 EC of Commission Decision C(2007) 4471 final,
dated 3 October 2007 relating to a proceeding under
Article 81 EC (Case COMP/D1/37860 — Morgan Stanley/Visa
International and Visa Europe) on one hand with regard to the
finding that Visa had infringed Article 81 EC and Article 53 EEA,
by refusing to admit Morgan Stanley Bank International Limited
(‘Morgan Stanley’)
to
22 September 2006, due to the fact that it owned and operated
a competing card system and, on the other hand, with regard to
the imposition of a fine of EUR 10,2 million to the applicants.

to membership of Visa Europe prior

infringement.

In particular,

Visa raises three pleas in law in relation to the Commission's
the
finding of
Commission's conclusion that the non-admission of Morgan
Stanley to Visa membership constituted an appreciable restric-
tion to competition falling under Article 81(1) EC is vitiated by
manifest errors of law and claims that the Commission failed to
establish the necessary elements in support of that conclusion.

it submits that

Action brought on 19 December 2007 — Visa Europe and
Visa International Service Association v Commission

(Case T-461/07)

(2008/C 51/91)

Language of the case: English

Parties

(a) First, it is submitted that the Commission applied the wrong
legal and economic test for the application of the aforemen-
tioned provision, namely that there was ‘scope for further
competition’ and reached,
the wrong factual and
economic assessment regarding the alleged effects of the
non-admission of Morgan Stanley. In fact, according to Visa,
Morgan Stanley was not prevented from entering the rele-
vant market (‘the UK acquiring market’).

thus,

(b) Second,

it is claimed that the Commission infringed an
essential procedural requirement by changing its case on
restrictive effect at the stage of the decision without giving
Visa an opportunity to respond to the new formulation of
the case.

Applicants: Visa Europe Ltd (London, United Kingdom) and Visa
International Service Association (Wilmington, United States)
(represented by: S. Morris, QC, H. Davies, Barrister, A. Howard,
Barrister, V. Davies, Solicitor and H. Masters, Solicitor)

(c) Third, even if Morgan Stanley was prevented from entering
the UK acquiring market, it is argued that there were no
sufficient anti-competitive effects.

C 51/50

EN

Official Journal of the European Union

23.2.2008

In relation to the fine that has been imposed, Visa raises the
following pleas in law under Article 229 EC:

Defendant: Commission of the European Communities

the non-admission of Morgan Stanley,

(a) In accordance with the application of fundamental princi-
ples of Community law to the particular circumstances of
the case and the genuine uncertainty that existed as to the
illegality of
the
Commission ought not to have imposed a fine on Visa at
all. In fact, Visa considers that there was no justification for
the fine imposed, given that the agreement in question had
been formally notified to the Commission pursuant to Regu-
lation (EEC) No 17/62 (1) and that the power to impose a
fine under Regulation (EC) No 1/2003 (2) only arose
because of the Commission's serious delay in the adminis-
trative procedure.

(b) In the alternative, the Commission committed, according to
law and assessment regarding the
Visa, various errors of
level of the fine that it could lawfully impose on the appli-
cants. On that basis, Visa
fine of
EUR 10,2 million was manifestly excessive and dispropor-
tionate, taking no account of the reasonable doubt as to the
illegality of Visa's conduct.

contends

that a

Finally, Visa claims that the Commission was only entitled to
impose a fine on Visa for the period for which the evidence was
established that Morgan Stanley was prevented from entering
the UK acquiring market. Even if Visa's earlier refusal to admit
Morgan Stanley to Visa membership could have made a differ-
ence to the conditions of competition in the relevant market,
this could not have been the case beyond that period and there-
fore, the Commission, in line with its 1998 Fining Guidelines,
should not have applied a duration multiplier.

(1) EEC Council Regulation No 17: First Regulation implementing Arti-

cles 85 and 86 of the Treaty (OJ 13, p. 204).

(2) 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 L 1, p. 1).

Action brought on 19 December 2007 — GALP Energia
España and Others v Commission

(Case T-462/07)

(2008/C 51/92)

Language of the case: English

Parties

Applicants: GALP Energia España SA (Madrid, Spain), Petróleos
de Portugal SA (Lisbon, Portugal) and GALP Energia, SGPS, SA
(Lisbon, Portugal) (represented by: M. Slotboom, lawyers)

Form of order sought

— Primarily, to set aside the contested decision; or

— alternatively, to set aside Articles 1, 2 and 3 of that decision

as far as the applicants are concerned; or

— alternatively, to set aside Article 2 of the decision to the
extent that a fine has been imposed on the applicants; or

— alternatively to reduce the fine that has been imposed on the

applicants in Article 2 of the decision;

— to order the Commission to bear the costs of the present

proceedings.

Pleas in law and main arguments

By means of their application, the applicants request annulment,
in whole or partially, of Commission Decision C(2007) 4441
final of 3 October 2007 relating to a proceeding under
Article 81 EC (Case COMP/38710 — Bitumen Spain) by which
the Commission found that the applicants, among other under-
takings, participated in a complex of agreements and concerted
practices in the penetration bitumen business which covered the
territory of Spain and which consisted in market sharing agree-
ments and price coordination.

In support of
following pleas in law:

their claims the applicants put

forward the

— the Commission,

in violation of

the principle of sound
administration enshrined in Article 41 of the Charter of
Fundamental Rights of the European Union, failed to insti-
tute a fair, careful and impartial investigation, substituting its
own independent investigation of the relevant facts by vague
and incorrect accusations made by other leniency applicants;

— the Commission allegedly breached Article 81 EC and
Article 23(2) of Regulation 1/2003 (1)
through manifest
errors of appraisal and misapplication of the law, by finding
that GALP Energia España took part in customer allocation,
in monitoring and compensation mechanisms, or in any of
the price arrangements, as described in the contested deci-
sion;

— the Commission further breached Article 81 EC and
Article 23(2) of Council Regulation (EC) No 1/2003
through its determination of the duration of the alleged
breach of Article 81 EC by concluding that GALP Energia
España's involvement in the prohibited practices lasted until
October 2002. In addition, the applicants submit that the
Commission violated the abovementioned provisions
in
determining the level of the fine imposed on them;