Case T-462/07: Action brought on 19 December 2007 — GALP Energia España and Others v Commission
Date: 2007-12-19
Institutions: Court of First Instance
Subjects: European Commission, Spain, action for annulment (EU), bituminous materials, fine, price agreement, restriction on competition, restrictive trade practice

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;

23.2.2008

EN

Official Journal of the European Union

C 51/51

— finally, since the Commission failed to carry out a careful
and independent investigation, there was a defective adduc-
tion of evidence and a breach of the principle of the obliga-
tion to state reasons, embodied in Article 253 EC.

(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 L 1, p. 1).

Action brought on 12 December 2007 — Italy v
Commission

(Case T-463/07)

(2008/C 51/93)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: G. Aiello, Avvocato
dello Stato)

Defendant: Commission of the European Communities

Form of order sought

— annul Commission Decision C(2007) 4477 of 3 October
2006, notified on 4 October 2007, in so far as it excludes
from Community financing and charges to the budget of the
Italian Republic the financial consequences to be applied in
connection with clearance of the expenditure financed by
the Guarantee Section of
the European Agricultural
Guidance and Guarantee Fund.

Pleas in law and main arguments

By the present action, the applicant challenges the lawfulness of
the contested decision, in so far as it excludes from Community
financing and charges to the budget of the Italian Republic the
financial consequences to be applied in connection with clear-
ance of the expenditure financed by the Guarantee Section of
the European Agricultural Guidance and Guarantee Fund.

the action,

The actual expenditure excluded from that financing, which is
the subject-matter of
for
the olive-oil
bovines, controls of the mills, the existence of
register and the geographical
information system for olives,
controls of the yield, checks of the destination of the oil and
dried fodder.

to premiums

relates

In support of its claims, the applicant pleads:

— infringement of Articles 15 and 24(1) of Commission Regu-
lation (EC) No 2419/2001 of 11 December 2001 laying
down detailed rules for applying the integrated administra-
tion and control system for certain Community aid schemes
established by Council Regulation (EEC) No 3508/92;

— infringement of Articles 9a(1) and (3), 10, 16, 26 and 28(1)
of Commission Regulation (EC) No 2366/98 of 30 October
1998 laying down detailed rules for the application of the
system of production aid for olive oil for the 1998/99,
1999/2000 and 2000/01 marketing years;

— infringement of Article 11a of Regulation No 136/66/EEC
of the Council of 22 September 1966 on the establishment
of a common organisation of the market in oils and fats;

— infringement of Article 14(3) of Council Regulation (EEC)
No 2261/84 of 17 July 1984 laying down general rules on
the granting of aid for the production of olive oil and of aid
to olive oil producer organisations;

— infringement of Articles 2, 8, 13 and 14 of Commission
Regulation (EC) No 785/95 of 6 April 1995 laying down
detailed rules for the application of Council Regulation (EC)
No 603/95 on the common organisation of the market in
dried fodder.

Action brought on 19 December 2007 — Korsch AG v
OHIM (PharmaResearch)

(Case T-464/07)

(2008/C 51/94)

Language in which the application was lodged: German

Parties

Applicant: Korsch AG (Berlin, Germany)
Grzam, lawyer)

(represented by J.

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

Form of order sought

— annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 18 October 2007 in Case R 924/2007-4
concerning word mark No 5 309 836 ‘PharmaResearch’;

— order the defendant to pay the costs of these proceedings

and of the proceedings before the Board of Appeal.