Case T-542/08: Action brought on 3 December 2008 — Evropaïki Dynamiki v ECHA
Date: 2008-12-03
Institutions: Court of First Instance
Subjects: European Chemicals Agency, action for annulment (EU), chemical product, product safety

C 44/58

EN

Official Journal of the European Union

21.2.2009

The applicants submit that the Commission further committed
manifest errors in determining the basic amount of the fine to
be imposed to Sasol by wrongfully inflating the turnover to be
taken into account and including turnover with products to
which the infringement did not directly or indirectly relate
within the meaning of Article 23(2)(1) of Regulation (EC)
No 1/2003 (3). The Commission also erred in law in choosing
the wrong methodology for determining the basic amount to be
applied in cases where the fine decision is directed at different
addresses for different periods of the infringement.

it

is submitted,

Furthermore,
the Commission erred in
assuming a leading role of Sasol with respect to paraffin waxes
and wrongfully increased the fine to be issued against Sasol by
an excessive and disproportionate amount of 50 %.

that

The applicants further contend that the Commission wrongfully
failed to apply the 10 % ceiling laid down in Article 23(2) of
Regulation (EC) No 1/2003 and violated the principle of indivi-
dual legal responsibility in not capping the fine to be issued for
this period at 10 % of the turnover attributable to Mr. Schü-
mann, who, according to the applicants ultimately controlled
the company which was directly involved in the infringement.

Finally, the applicants claim that the Commission erred in not
granting full immunity to Sasol with regards to certain parts of
the fine for which the Commission primarily relied on evidence
voluntarily provided by Sasol as part of its cooperation with the
Commission.

(1) Unless otherwise specified, refers to companies of the Sasol group

allegedly involved in the cartel.

(2) Partner of

the joint venture Schümann Sasol

International AG,
together with Sasol Ltd which indirectly acquired two thirds of Hans-
Otto Schümann GmbH & Co KG.

(3) 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 2003 L 1, p. 1).

Action brought on 3 December 2008 — Evropaïki
Dynamiki v ECHA

(Case T-542/08)

(2009/C 44/100)

Language of the case: English

Defendant: European Chemicals Agency

Form of order sought

— annul European Chemicals Agency's decision to reject the
bid of the applicant, filed in response to the open Call for
Tender ECHA/2008/24 for the ‘Development of a Chemical
Safety Assessment tool’ (OJ 2008/S 115-152918), commu-
nicated to the applicant by an undated letter received by the
applicant on 25 September 2008 and all subsequent deci-
sions of ECHA including that to award it to the successful
contractor;

— order ECHA to pay the applicant's damages suffered on
the tendering procedure in question for an

account of
amount of EUR 1 500 000;

— order ECHA to pay the applicant's legal costs incurred in
connection with this application even if the current applica-
tion is rejected.

Pleas in law and main arguments

By means of its application, the applicant seeks the annulment
of the European Chemicals Agency's (‘ECHA’) decision which
was notified to it by way of a letter on 25 September 2008
informing the applicant that its bid submitted in the framework
the contract ECHA/2008/24 for the ‘Development of a
of
Chemical Safety Assessment tool’ (OJ 2008/S 115-152918) had
not been selected and that the contract had been attributed to
TRASYS SA.

fundamental

allegedly infringed by the

The applicant claims that the Evaluation Committee committed
multiple errors of assessment in relation to the award criteria,
rules and basic principles of public
whereas
contracting
procurement were
authority. Moreover, it is submitted that the ECHA misused its
powers in the tender evaluation, infringed the Financial Regu-
lation, and/or the principles of transparency and of equal treat-
ment and that it used vague terms or insufficient motivation to
substantiate its decision. Finally, the applicant contends that the
defendant breached an essential procedural
requirement,
deriving
from Article 158a of Commission Regulation
(EC, Euratom) No 478/2007 (1), providing for a standstill period
before signing the contract with the successful tenderer. The
the defendant has deliberately delayed
applicant claims that
communicating with the applicant in order to be able to finalise
the signature of the contract with the wining tenderer before it
received any comments from the applicant, thus annulling the
spirit and purpose of the standstill period.

Parties

Applicant: Evropaïki Dynamiki — Proigmena Systimata Tilepi-
koinonion Pliroforikis kai Tilematikis AE (Athens, Greece)
(represented by: N. Korogiannakis, P. Katsimani, and M. Dermit-
zakis, lawyers)

the applicant

In addition,
requests monetary compensation
equal to EUR 1 500 000, corresponding to the estimated gross
profit from the aforementioned public procurement procedure,
should it have been awarded the contract. The applicant submits
that its claim for damages is based upon its substantiated argu-
ments that there has been a sufficiently serious breach of a

21.2.2009

EN

Official Journal of the European Union

C 44/59

superior rule of law for the protection of the individual and
that the institutions concerned manifestly and gravely disre-
garded the limits on the exercise of their powers.

Action brought on 16 December 2008 — Total v
Commission

(1) Commission Regulation (EC, Euratom) No 478/2007 of 23 April
2007 amending Regulation (EC, Euratom) No 2342/2002 laying
down detailed rules for the implementation of Council Regulation
(EC, Euratom) No 1605/2002 on the Financial Regulation applicable
to the general budget of the European Communities (OJ 2007 L 111,
p. 13).

(Case T-548/08)

(2009/C 44/102)

Language of the case: French

Action brought on 2 December 2008 — Villa Almè v
OHIM — Bodegas Marqués de Murrieta (i GAI)

(Case T-546/08)

(2009/C 44/101)

Parties

Applicant: Total SA (Courbevoie, France)
Morgan de Rivery and A Noël-Baron, lawyers)

(represented by: E.

Defendant: Commission of the European Communities

Language in which the application was lodged: Italian

Form of order sought

Parties

Applicant: Villa Almè Azienda vitivinicola di Vizzotto Giuseppe
(Mansuè,
lawyer, P. Massa,
lawyer)

(represented by: G. Massa,

Italy)

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

Other party to the proceedings before the Board of Appeal: Bodegas
Marqués de Murrieta, SA (Logroño, Spain)

Form of order sought

— as the main plea, annulment under Article 230 EC of the
decision of the Commission of the European Communities
No C(2008) 5476 final of 1 October 2008, in so far as it
concerns TOTAL SA;

— in the alternative, annulment under Article 230 EC of the
fine of EUR 128 163 000 imposed jointly and severally on
TOTAL FRANCE and TOTAL SA by Article 2 of the above-
mentioned decision;

— further in the alternative, reduction of the said fine pursuant

to Article 229 EC;

— in any event, order

the Commission of

the European

Communities to pay the costs.

— Annul

the Decision of 24/09/08 of

the First Board of

Appeal (R 1695/2007-1) and order OHIM to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Figurative mark ‘i GAY’ (regis-
tration application No 4.458.295) for goods in Class 33 (wines).

Proprietor of the mark or sign cited in the opposition proceedings:
Bodegas Marqués de Murrieta S.A.

Mark or sign cited in the opposition proceedings: Spanish word mark
and Community figurative mark
(No 2.315.558)
(No 1.707.729) and Community word mark (No 1.699.412)
‘MARQUES DE MURRIETA YGAY’,
for goods in Class 33
(wines).

‘YGAI’

Decision of the Opposition Division: Opposition upheld.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Incorrect application of Article 8(1)(b) of Regulation
(EC) No 40/94 on the Community trade mark.

By the present action, the applicant seeks the partial annulment
of the Commission's decision C(2008) 5476 final, of 1 October
in which the
2008,
in case COMP/39.181 — Candle waxes,
Commission found that certain undertakings,
including the
applicant, had infringed Article 81(1) EC and Article 53(1) of
the Agreement on the European Economic Area by fixing prices
and partitioning the markets for paraffin waxes in the European
Economic Area (EEA) and gatsch in Germany.

In support of its action, the applicant makes nine pleas in law,
claiming:

— infringement of the rights of the defence and the presump-
tion of the applicant's innocence, inasmuch as the contested
decision infringed the scope ratione personae of those rights
and by reason of procedural irregularities during the investi-
gation phase and circular reasoning in the decision itself;

— contradiction in reasoning as regards (i) the need to verify
whether the parent company actually exercised a decisive
the
influence over its subsidiary and (ii) the content of
control which a parent company must exercise over its
subsidiary for it to be possible to impute the infringement
to the parent company;