Case T-404/08: Action brought on 20 September 2008 — Fluorsid and Minmet v Commission
Date: 2008-09-20
Institutions: Court of First Instance
Subjects: EU market, European Commission, Italy, Switzerland, action for annulment (EU), aluminium, disclosure of information, exchange of information, exclusive economic zone

C 301/52

EN

Official Journal of the European Union

22.11.2008

Other party to the proceedings before the Board of Appeal: BP plc
(London, United Kingdom)

Form of order sought

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 14 July 2008 in case R 957/2006-4, insofar
as it dismisses the appeal lodged by the applicant against the
decision of the Opposition Division of 26 May 2006 ruling
on opposition number B 760 605; and

— Order the defendant to pay the costs.

Pleas in law and main arguments

— annulment of

proceedings

the decision of

3043 concerning

the Commission of
the European Communities adopted on 25 June 2008
C(2008)
to
Article 81 of the EC Treaty and Article 53 of the EAA
Agreement, Case COMP/39.180 — Aluminium fluoride,
notified to Fluorsid and Minmet on 11 July 2008 and 9 July
2008 respectively, or, in the alternative, for reduction of the
fine imposed on Minmet and Fluorsid under the decision as
provided for in Article 4482) of the Rules of Procedure of
the Court.

pursuant

Applicant for the Community trade mark: The applicant

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘ENERCON’ for
goods in classes 1, 2 and 4

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

or

sign cited: Community

trade mark registration
Mark
No 137 828 of the word mark ‘ENERGOL’ for goods in classes 1
and 4

Decision of the Opposition Division: Upheld the opposition except
for the goods that were found dissimilar

Decision of the Board of Appeal: Rejected the appeal for the goods
that were found dissimilar and dismissed the appeal for the
remainder

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94 as the Board of Appeal erred in its finding that
there is a likelihood of confusion between the conflicting trade
marks.

Action brought on 20 September 2008 — Fluorsid and
Minmet v Commission

(Case T-404/08)

(2008/C 301/88)

Language of the case: Italian

Parties

Applicants: Fluorsid SpA (Assemini,
(Lausanne, Switzerland)
Perego, lawyers)

Italy) and Minmet Co.
(represented by: L. Vasques and F.

Defendant: Commission of the European Communities

By its present action, the companies Fluorsid and Minmet wish
to challenge the decision by which the European Commission
found an infringement of Article 81(1) of
the Treaty and
Article 53(1) of the EAA Agreement and therefore jointly and
severally fined Fluorsid and Minmet for an alleged serious infrin-
gement of Article 81 of
sum of
the
EUR 1 600 000 (one million six hundred thousand).

the Treaty for

In support of their claims, the applicants plead:

— Absence of proof of the potential harm in the EAA and
infringement of the provisions of Article 81 of the Treaty. In
that respect it is stated that it is impossible to argue that
four small undertakings, of which one has not even had
sales in 2000 in the EAA, can, even in the abstract, impose
prices on large aluminium producers (also called ‘smelters’)
in a market in which it is supply and not demand which
determines prices.

— Infringement of

the duty to state reasons regarding the
proof of the unlawful conduct in breach of Article 253 of
the Treaty and Article 2 of Regulation (EC) No 1/2003, for
changing in a surreptitious manner the contested infringe-
ment in order to lessen the Commission's burden of proof.
It claims on that point that the Commission was able to
acquire evidence of an exchange of information between
competitors, but not of an agreement with an object to
restrict competition. That change of the description of the
unlawful conduct favoured the Commission, which was then
able to refer, in the applicants' view incorrectly, the per se
rule laid down for hard core restrictions, therefore lightening
its burden of proof and enabling it to disregard the fact that
the alleged unlawful conduct had no effect on the market.

— Infringement of Article 27 of Regulation No 1/2003 and of
the rights of the defence, as well as of Articles 253 and 173
of the Treaty in so far as the Commission does not cite
leniency in respect of Floursid under the Statement of Objec-
tions (SO), carried out investigations and acquired documen-
tation for the case-file after the SO, and in the final decision
challenged unlawful conduct which was different from that
challenged in the SO (uninterrupted infringement and infrin-
gement lasting 6 months).

22.11.2008

EN

Official Journal of the European Union

C 301/53

The applicants also plead that:

Alternative form of order sought:

— To substantiate Minmet's involvement, documents against
the applicants which were not cited in the SO were referred
to in the final decision.

— Although the Commission disregarded leniency in respect of
Fluorsid in the SO in breach of the rights of the defence, in
the second instance it inserted in the case-file both leniency
the applicants and an addendum to the
in respect of
leniency issue lodged after the SO.
In that manner the
Commission (i) created uncertainty regarding leniency, detri-
mental to the time frame and substance of the applicants'
rights of defence in breach of the rules set out in point 29
of the Commission Notice on immunity from fines and
(ii) continued to carry out
the SO,
adding documentation to the file, thereby infringing funda-
mental procedural rules detrimental to all the parties to the
proceedings.

investigations after

— The Commission defined the geographic market of alumi-
nium fluoride in an inconsistent manner without stating
satisfactory reasons and quantified the value of the market
completely inconsistently.

Action brought on 25 September 2008 — S.F. Turistico
Immobiliare v Council and Commission

(Case T-408/08)

(2008/C 301/89)

Language of the case: Italian

Parties

— Annul in part the contested decision, in so far as it declares
the entire aid scheme incompatible with the common
market, ‘unless the recipient of the aid submitted an applica-
tion for aid under the scheme before starting work on an
initial investment project’, and orders the Republic of Italy
to recover the relevant amounts, without excepting the aid
in so far as it provides an incentive to keep the resulting
costs — borne by the recipient before the aid application
was submitted — within the limits provided for under the
de minimis aid provisions.

Further alternative form of order sought:

— Declare unlawful point 4.2 of the Council Guidelines on
national regional aid (98 C 74/06), according to which ‘[i]n
addition, aid schemes must lay down that an application for
aid must be submitted before work is started on the
in so far as it excludes from eligibility all aid
projects’,
intended in favour of recipients, without excepting that part
of the aid relating to investments, made after submission of
the application, which are functionally or structurally auton-
omous.

— Annul in part the contested decision, in so far as it orders
full recovery by the Republic of
the amounts
previously disbursed, without excepting the aid in so far as it
provides an incentive for costs to be borne by the recipient
after submission of the application for aid and relating to
portions which are functionally or structurally autonomous
in relation to the project undertaken.

Italy of

Pleas in law and main arguments

The contested decision in the present case is the same as that at
issue in Case T-394/08 Regione Sardegna v Commission.

Applicant: S.F. Turistico Immobiliare Srl
sented by: L. Marcialis, lawyer)

(Orosei, Italy)

(repre-

The pleas in law and principal arguments are similar to those
put forward in Case T-394/08.

Defendant: Council of the European Union and Commission of
the European Communities

Forms of order sought

Principal forms of order sought:

— Declare null and void the decision of the Commission of the
European Communities C(2008) 2997 of 2 July 2008 on a
State aid scheme:
‘Misuse of aid measure No N 272/98,
Regional Act No 9 of 1998’;

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

including those incurred by the applicant.

The applicant pleads in particular the unlawfulness, within the
meaning of Article 241 EC, of point 4.2 of the Council Guide-
lines on national regional aid (98 C 74/06), in so far as it is
wholly counter to the rationale underlying the Community aid
policies, especially in a case characterised by such special
features, to infer from the completion of a small part (roughly
20 %) of the planned work that the rest of the work is wholly
ineligible for aid, even though that work had duly been
commenced during a time-period subsequent to that established
by the guidelines in question.