Case T-204/08: Action brought on 4 June 2008 — Team Relocations NV v Commission
Date: 2008-06-04
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), fine, fixing of prices, invitation to tender, market-sharing agreement, provision of services

C 197/28

EN

Official Journal of the European Union

2.8.2008

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

Action brought on 4 June 2008 — Team Relocations NV v
Commission

Other party to the proceedings before the Board of Appeal: Ares
Trading, SA (Aubonne, Switzerland)

Form of order sought

— The complaint filed by the applicant be admitted;

Parties

(Case T-204/08)

(2008/C 197/50)

Language of the case: English

— annul the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 6 March 2008 in case R 0805/2007-2 and
the application filed by the other party to the proceedings
before the Board of Appeal requesting a declaration of inva-
lidity of the Community trade mark concerned be dismissed;
and

— order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘SEROSLIM’ for
goods and services in classes 3, 5 and 35 — application
No 4 113 321

Proprietor of the mark or sign cited in the opposition proceedings: The
other party to the proceedings before the Board of Appeal

Mark or sign cited: The word mark ‘SEROSTIM’ for goods in
class 5 — Community trade mark 2 405 694

Decision of the Opposition Division: Upheld the opposition with
respect to all the goods in class 5 and in respect of ‘soaps, hair
lotions and dentifrices’ in class 3

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8 of Council Regulation
No 40/94 as the most important aspect in assessing the exis-
tence of any likelihood of confusion is the overall impression
created by the two trade marks in question on the public
concerned. Furthermore, the existence of a likelihood of confu-
sion that would be relevant from the point of view of trade
mark law, depends, in this connection, on a large number of
circumstances, including, but not limited to, the recognition of
the trade mark in question, the associations that the used or
registered sign appears to be able to create, as well as the degree
of similarity between the mark and the sign or between the
goods and services identified.

Applicant(s): Team Relocations NV (Zaventem, Belgium) (repre-
sented by: H. Gilliams, J. Bocken, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul Article 1 of the Commission Decision of 11 March
removal
2008 in Case COMP/38.543 — International
services,
insofar as it declares that the applicant infringed
Article 81 EC and Article 53(1) EEA in the period January
1997 — September 2003 by directly and indirectly fixing
prices
in Belgium,
International Removal Services
sharing part of the market and manipulating the procedure
of submission of tenders;

for

— annul Article 2 of the Commission Decision of 11 March
2008 in Case COMP/38.543 — International Removal
Services, in so far as it imposes on the applicant a fine of
EUR 3,49 million;

— in the alternative, substantially reduce the fine imposed by

the aforementioned decision;

— in any event, order the costs of the proceedings to be borne

by the Commission.

Pleas in law and main arguments

By means of this application the applicant seeks annulment
pursuant to Article 230 EC of Articles 1 and 2 of Commis-
sion Decision C(2008)926 final of 11 March 2008 (Case
COMP/38.543 — International Removal Services) relating to a
proceeding under Article 81(1) EC and Article 53(1) EEA in so
far as it imposes a fine on the applicant.

The applicant puts forward eight pleas in law in support of its
claims:

the applicant claims

First,
the Commission violated
that
Article 81 EC and Article 53 EEA as well as the duty to state
reasons by asserting in Article 1 of its decision that the appli-
cant participated from January 1997 to September 2003 in a
single, continuous infringement of Article 81 EC.

Second, the applicant submits that the Commission violated the
principle of equal treatment as well as the 2006 Fining Guide-
lines (1) by taking into account, for purposes of calculating the
basic amount of the fine, the applicant's aggregate sales on the
Belgian market for international removals,
including turnover
derived from moves for private individuals.

2.8.2008

EN

Official Journal of the European Union

C 197/29

Third, the applicant contends that the percentage of 17 % of the
value of sales applied by the Commission for the purposes of
calculating the basic amount of the applicant's fine is excessively
high. In doing so, the Commission allegedly violates the princi-
ples of equal treatment and proportionality, the 2006 Fining
Guidelines and the duty to state reasons.

it claims that

Fourth, the applicant submits that there is no basis for multi-
plying the applicant's value of sales by the number of years
during which the practices in which it engaged occurred.
Further,
the
amount determined on the basis of the value of sales by the
number of years of an undertaking's participation in the infrin-
gement confers on the alleged duration of the infringement an
importance disproportionate in relation to other factors and in
particular to the gravity of the infringement.

the automatic multiplication of

Fifth, the applicant advances that there is no basis for imposing
on the applicant an additional amount of EUR 436 850,53,
equal to 17 % of the value of its sales.

Sixth, the applicant claims that the Commission should have
taken into consideration several mitigating circumstances that
warrant a substantial reduction of the applicant's fine.

the applicant argues that

there was no basis for
Seventh,
imposing a fine that exceeds 10 % of its turnover. In doing so,
the Commission violated Article 23 of Regulation (EC)
1/2003 (2) and the principle of proportionality.

Eighth and in the alternative, the applicant submits that its fine
should be substantially reduced in order to take into account its
inability to pay.

(1) Guidelines on the method of setting fines imposed pursuant to
Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210,
p. 2).

(2) Council Regulation (EC) No 1/2003 of 16 December 2002 on the
implementation of the rules of competition laid down in Articles 81
and 82 EC (OJ 2003 L 1, p. 1).

Form of order sought

— annul Commission Decision 2008/321/EC of 8 April 2008
excluding from Community financing certain expenditure
incurred by the Member States under the Guarantee Section
of the European Agricultural Guidance and Guarantee Fund
(EAGGF) and under the European Agricultural Guarantee
Fund (EAGF), in so far as it includes corrections which affect
the Kingdom of Spain, deriving from two investigations
concerning potential for vine production (VT/VI/2002/14
and VT/VI/2006/09), totalling EUR 54 949 195,80, as a
result of the application of a correction at a flat rate of
10 % of all
the expenditure declared earlier by way of
related assistance; and

— order the Commission to pay the costs.

Pleas in law and main arguments

The exclusions from Community financing which affect Spain
in the present proceedings derive from two investigations
concerning potential for vine production (VT/VI/2002/14 and
VT/VI/2006/09), taking as a basis for the calculation of the
financial correction the expenditure declared by Spain for all the
assistance measures for which the products resulting from illegal
plots of vineyard plantations in the budgetary years 2003 and
2004 could compete,
for a total of EUR 54 949 195,80
(correction at a flat rate of 10 % of all the expenditure declared
by way of such assistance, in respect of defects in controls of
the prohibition on any plantation of vines).

The Kingdom of Spain challenges the proposed financial correc-
tion, considering it unjustified and disproportionate, on the
basis of the following arguments:

— failure to state the reasons on which the proposed correction

is based;

— correct implementation by Spanish organisations of controls
for the detection of illegal plantations in 2003 and 2004;

Action brought on 9 June 2008 — Spain v Commission

— failure by the Commission to carry out

the procedures

provided for in connection with the clearance of accounts,

(Case T-206/08)

(2008/C 197/51)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: Sr. F. Díez
Moreno)

Defendant: Commission of the European Communities

— inappropriateness of using the results of the investigation

carried out in 2002;

— rejection of the extrapolation of the proposed correction to

the Autonomous Regions not visited; and

— absence of technical arguments to support the proposed
percentage of charge: discriminatory aspects of the various
regulatory measures.