Case T-351/08: Action brought on 25 August 2008 — Matratzen Concord v OHIM — Barranco Schnitzler and Barranco Rodriguez (MATRATZEN CONCORD)
Date: 2008-08-25
Institutions: Court of First Instance
Subjects: European Union Intellectual Property Office, Germany, action for annulment (EU), trade-mark law

8.11.2008

EN

Official Journal of the European Union

C 285/45

Form of order sought

Defendant: Commission of the European Communities

— Annul Commission decision of 11 June 2008 — Case
COMP/F/38.695 — Sodium Chlorate as far as it relates to
Aragonesas; or

— Amend Articles 1 and 2 of the decision to annul or substan-

tially to reduce the fine imposed on Aragonesas; and

— Order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

By means of
seeks partial
this application the applicant
annulment pursuant to Article 230 EC of Commission Decision
C(2008) 2626 final of 11 June 2008 (Case COMP/38.695 —
Sodium Chlorate) relating to a proceeding under Article 81(1)
EC and Article 53(1) EEA in so far as it relates to the applicant.
Alternatively, it seeks the amendment of the Articles 1 and 2 of
the decision in so far as it imposes a fine on the applicant.

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

First, the applicant submits that the Commission committed a
manifest error of appraisal
in finding that the applicant had
participated in a cartel between late 1994 and 2000, allocating
sales volumes and fixing prices for sodium chlorate. It claims
that the level of evidence put forward by the Commission in the
decision is insufficient to establish to the requisite legal standard
the applicant's participation in a single continuous infringement.

Second, the applicant argues that there has been an infringe-
ment of the principles of proportionality and equal treatment
by reason of the fact that the Commission, in its calculation of
the basic amount of the fine:

— wrongly assessed the gravity of the infringement with regard

to the applicant;

— wrongly applied the entry fee to the applicant;

— failed to properly assess the duration of the infringement;

and

— failed to take account of
specific to the applicant.

the mitigating circumstances

Action brought on 26 August 2008 — Uralita v
Commission

(Case T-349/08)

(2008/C 285/83)

Language of the case: English

Parties

Applicant: Uralita,
I. Forrester, QC, K. Struckmann, P. Lindfelt,
Esteva, lawyers)

SA (Madrid,

Spain)

(represented

by:
J. Garcia-Nieto

Form of order sought

— Annul Commission decision of 11 June 2008 — Case
COMP/F/38.695 — Sodium Chlorate as far as it relates to
Uralita; and

— Order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

seeks partial
this application the applicant
By means of
annulment pursuant to Article 230 EC of Commission Decision
C(2008) 2626 final of 11 June 2008 (Case COMP/38.695 —
Sodium Chlorate) relating to a proceeding under Article 81(1)
EC and Article 53(1) EEA in so far as it finds that the applicant
must be held jointly and severally liable for infringement alleg-
edly committed by Aragonesas,
in which the applicant held
shares, during the period 16 December 1996 through
9 February 2000.

The applicant puts forward two pleas in law in support of its
claims.

First, it submits that the Commission erred in law by imputing
the conduct of Aragonesas
to Uralita by way of parent-
subsidiary liability.

Second, the applicant submits that the Commission erred in
imputing the conduct of Aragonesas to Uralita by way of succes-
sion.

Action brought on 25 August 2008 — Matratzen Concord
v OHIM — Barranco Schnitzler and Barranco Rodriguez
(MATRATZEN CONCORD)

(Case T-351/08)

(2008/C 285/84)

Language in which the application was lodged: German

Parties

Applicant: Matratzen Concord GmbH (Cologne, Germany)
(represented by: J. Albrecht, lawyer)

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

C 285/46

EN

Official Journal of the European Union

8.11.2008

Other parties to the proceedings before the Board of Appeal of OHIM:
Pablo Barranco Schnitzler
Just Desvern, Spain) and
(Sant
Mariano Barranco Rodriguez (Sant Just Desvern)

Defendant(s): Commission of the European Communities

Form of order sought

Form of order sought

— annul the decision of the Second Board of Appeal of OHIM

of 30 May 2008 (Case R 1034/2007-2);

— order OHIM to pay the costs,

including those of

the

proceedings before the Board of Appeal.

— As a main claim, annulment of

the
Commission of 4 June 2008 on aid granted by Hungary
under long term power purchase agreements (C 41/2005
(ex NN 49/2005), ‘the contested decision’).

the decision of

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

— In the alternative, that the applicant be exempted from the
obligation to repay the aid imposed by the contested deci-
sion.

Community trade mark concerned: figurative mark ‘MATRATZEN
CONCORD’ for goods in Classes 10, 20 and 24 (Application
No 3 355 369)

Proprietors of the mark or sign cited in the opposition proceedings:
Pablo Barranco Schnitzler and Mariano Barranco Rodriguez

or

Mark
‘MATRATZEN’ for goods in Class 20

cited

sign

in

opposition: national word mark

Decision of the Opposition Division: Refusal of the application for
a Community trade mark

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94,
in that there is no likelihood of confusion
between the conflicting marks, and infringement of Article 43(2)
of
in that no proof has been provided of
genuine use of the mark cited in opposition.

that regulation,

Action brought on 25 August 2008 — Pannon Hőerőmű v
Commission of the European Communities

(Case T-352/08)

(2008/C 285/85)

Language of the case: Hungarian

Parties

Applicant(s): Pannon Hőerőmű Energiatermelő (Pécs, Hungary)
(represented by: M. Kohlrusz, P. Simon and G. Ormai)

— That the Commission be ordered to pay the costs.

Pleas in law and main arguments

The applicant is a private limited company principally involved
in the production of electricity. Before the accession of Hungary
to the European Union, certain electricity producers, as sellers,
concluded long term power purchase agreements (‘PPAs’) with
MVM Trade Villamosenergia-kereskedelmi Zrt.
(‘MVM’), as
purchaser. Under those agreements, MVM is obliged to purchase
a specific quantity of electricity from the producers operating
under the PPAs. According to the contested decision, that obli-
gation to purchase constitutes state aid incompatible with the
common market, which must be repaid by its recipients.

In support of its main claim, seeking the annulment of the
contested decision, the applicant essentially alleges that there
has been a breach of essential procedural requirements, that the
legal rules have been misapplied and that it has an obligation to
supply in the general economic interest.

As regards the breaches of essential procedural requirements,
the applicant complains,
first, that the Commission did not
examine each of the PPAs but reached a general conclusion
concerning all the PPAs. Second, the applicant alleges that the
Commission did not take into account the applicability of the
PPAs in the long term but only from 1 May 2004, that is to say,
it considered the period between the accession of Hungary to
the European Union and the adoption of the contested decision.
Third, the applicant states that the Commission only examined
how an economic operator in the position of MVM proceeded
and did not analyse the conduct of economic operators in the
position of the electricity producers. Fourth, it alleges that the
Commission erroneously classed the price fixing mechanism
it
adopted under the PPAs as a ‘guarantee’. Fifth, and finally,
submits that, as regards distortion of competition, the Commis-
sion merely made general statements and did not examine the
actual circumstances.