Case T-551/08: Action brought on 15 December 2008 — H & R ChemPharm v Commission
Date: 2008-12-15
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), infringement of EU law, oil refining, petroleum product

C 55/32

EN

Official Journal of the European Union

7.3.2009

Form of order sought

The applicant relies on two pleas in law in support of its action.

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

of 6 October 2008 in Case R 846/2008-4;

— order OHIM to bear its own costs and pay those of the

applicant.

Pleas in law and main arguments

Community trade mark concerned: Figurative trade mark as ‘other
mark — positional mark’
‘orange
(Pantone 16-1359 TPX)’
for goods in Class 25 (application
No 5 658 117).

colour

the

of

Decision of the Examiner: Registration refused.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 7(1)(b) of Regulation (EC)
No 40/94, (1) since the trade mark applied for
fulfils the
minimum requirement as to distinctive character.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).

Action brought on 15 December 2008 — Tudapetrol
Mineralölerzeugnisse Nils Hansen v Commission

(Case T-550/08)

(2009/C 55/59)

Language of the case: German

Parties

Applicant: Tudapetrol Mineralölerzeugnisse Nils Hansen KG
(Hamburg, Germany) (represented by: U. Itzen and J. Ziebarth,
lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul the contested decision in so far as it relates to the

applicant;

— in the alternative, reduce as appropriate the level of the fine

imposed on the applicant in the contested decision;

the

to state

By its first plea in law, the applicant claims that there has been
an infringement of
reasons under
duty
Article 253 EC and an infringement of the rights of the defence
inasmuch as the appraisal of evidence carried out by the
Commission in the contested decision does not in fact specifi-
cally indicate which acts contributing to the offence are to be
attributed to the applicant. The broad-brush appraisal of the
evidence carried out by the Commission relates to, besides the
applicant, also other companies, the actions of which cannot be
attributed to the applicant. In light of the unclear appraisal of
the
the evidence,
defence, as the Commission is under an obligation to indicate,
in a clear and unequivocal manner, which contributory acts it
attributes to which undertakings and the consequences thereof.

there is an infringement of

the rights of

The applicant further claims that it was not involved in any
activity contrary to Article 81 EC. Not only did the Commission
fail,
in formal terms, to carry out a proper appraisal of the
evidence, but even a subsidiary substantive examination of the
evidence indicates that no allegation made against the applicant
was substantiated. The conclusion that the applicant infringed
the law on cartels cannot be drawn from the meetings detailed
and the evidence thereof provided in the framework of the
appraisal of the evidence. This is especially true also in light of
the fact that only a limited allegation was made from the outset
in relation to the applicant. That fact, however, was not taken
into consideration when the evidence was being appraised;
instead, and to the further detriment of the applicant, account
was taken of evidence which might prove potential offences on
the part of third parties but in which the applicant was not
involved.

By its second plea in law, the applicant claims that the limitation
period had expired. It claims that it had already, at the beginning
of 2000, transferred the distribution business in question to
another company, with the result that the first measures in early
2005 that stopped the limitation period running could no
longer have led to action being taken against the applicant in
respect of an old offence.

Action brought on 15 December 2008 — H & R
ChemPharm v Commission

(Case T-551/08)

(2009/C 55/60)

— order the defendant to pay the costs of the proceedings.

Language of the case: German

Pleas in law and main arguments

is

applicant

challenging

Commission

The
Decision
C(2008) 5476 final of 1 October 2008 in Case COMP/39.181
in which the defendant found that certain
— Candle Waxes,
including the applicant, had participated in a
undertakings,
continuing agreement and/or concerted practice in the paraffin
waxes sector, contrary to Article 81(1) EC and Article 53 of the
Agreement on the European Economic Area.

Parties

Applicant: H & R ChemPharm GmbH (Salzbergen, Germany)
(represented by: M. Klusmann and S. Thomas, lawyers)

Defendant: Commission of the European Communities

7.3.2009

EN

Official Journal of the European Union

C 55/33

Form of order sought

Action brought on 17 December 2008 — Commission v
Domótica

— annul the contested decision in so far as it relates to the

applicant;

— in the alternative, reduce as appropriate the amount of the
fine imposed on the applicant in the contested decision;

— order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Parties

(Case T-552/08)

(2009/C 55/61)

Language of the case: Portuguese

is

applicant

challenging

Commission

The
Decision
C(2008) 5476 final of 1 October 2008 in Case COMP/39.181
— Candle Waxes,
in which the defendant found that certain
including the applicant, had participated in a
undertakings,
continuing agreement and/or concerted practice in the paraffin
waxes sector, contrary to Article 81(1) EC and Article 53 of the
Agreement on the European Economic Area.

The applicant relies on four pleas in law in support of its action.

In its first plea, the applicant alleges infringement of its rights of
defence inasmuch as the contested decision does not differ-
entiate between it and other companies which were fined sepa-
rately, but instead refers uniformly to ‘H & R/Tudapetrol’. The
applicant asserts that it does not understand which specific acts
contributing to the offence are to be attributed to it. Its rights of
defence are thereby infringed in so far as the grounds of
complaint and the decision must indicate unambiguously which
specific acts lead to the allegation of a breach of law and the
resulting imposition of a fine.

In the alternative, the applicant argues in its second plea in law
that there is no evidence that it acted unlawfully. The Commis-
sion, on the basis of its broad-brush appraisal of the evidence in
relation to all of the undertakings to which the decision was
addressed, failed to have regard for the fact that there was no
evidence of an infringement on the part of the applicant. The
applicant submits that the Commission did not carry out a suffi-
ciently discriminating and individual appraisal of the evidence
which could, and would necessarily, have shown that
the
evidence adduced was insufficient to establish that the applicant
had committed an offence.

In the further alternative, the applicant claims in its third plea in
law that, in the calculation of the fine, the initial amount was
erroneously set too high.

In the further alternative, the applicant claims in its fourth plea
in law that the principle of proportionality and the prohibition
of discrimination were breached by reason of the erroneous
calculation of the fine. Specifically, the applicant asserts that an
error of assessment was made when fixing at 17 % the percen-
tage of turnover for the severity of the offence and the entry fee
and that the level of the fine was disproportionate as a result of
the disproportionate account taken of the size of the under-
taking. Finally, the applicant points out that the 2006 Guidelines
on fines were unlawfully applied retroactively in the present
case, which predates those Guidelines.

Applicant: Commission (represented by A.M. Rochaud-Jöet and
S. Petrova, Agents, assisted by G. Anastácio and A.R. Andrade,
lawyers)

Defendant: Domótica, Estudo e Projecto de Edifícios Inteligentes,
Lda (Lisbon, Portugal)

Form of order sought

— An order that the defendant should pay the applicant the
sum of EUR 124 319,22, being the repayment of an
advance paid by the applicant in performance of contract
No BU/466/94 PO/ES, concluded in connection with the
Thermie programme and terminated on grounds of
the
failure of the defendant and other cocontractors to perform
their
of
obligations, with
EUR 48 000 by way of default
interest accrued until
30 September 2008 and interest still to fall due until full
and final payment;

contractual

increase

an

— An order that the defendant should pay the costs.

Pleas in law and main arguments

On 17 January 1995 the Commission of the European Commu-
nities concluded Thermie contract No BU/466/94 PO/ES with
the defendant, with the teaching hospitals of Coimbra and with
the company Técnicas Reunidas S.S., pursuant to Regulation
(EEC) No 2008/90 (1).

The defendant was appointed to be project co-ordinator and
took on responsibility for submitting to the Commission the
necessary documents, and to act as link between the contractors
and the Commission. The liability of the cocontractors was joint
and several.

in accordance with what had been
On 10 February 1995,
agreed, the Commission paid the advance of 30 %, that is to
say, EUR 176 693.

On 24 May 2000 the Commission rescinded the contract for
just cause (having put the defendant on notice), putting forward
the following failures to perform contractual obligations:

— delays in performance not communicated timeously to the

Commission;

— Domótica's

inability to begin to perform the contract

(admitted by the defendant);

— failure to send to the Commission financial and technical

reports in good time and due form;

— failure to conclude work implementing the project within
the original period, or within the extension subsequently
granted (31 August 2000).