Case T-548/08: Action brought on 16 December 2008 — Total v Commission
Date: 2008-12-16
Institutions: Court of First Instance
Subjects: European Commission, European Economic Area, action for annulment (EU), infringement of EU law, paraffin, rights of the defence

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;

C 44/60

EN

Official Journal of the European Union

21.2.2009

— infringement of

inasmuch as (i)

the rules governing the imputability of
infringements of Article 81 EC amongst groups of compa-
nies,
the contested decision erroneously
stated that the Commission was not required to produce
evidence supporting the presumption and (ii) the contested
decision infringed the principle of
legal and economic
autonomy of any subsidiary on which national company
laws are based;

— manifest error of assessment, inasmuch as (i) the appoint-
ment of TOTAL FRANCE board members by TOTAL SA did
not strengthen the presumption of decisive influence and
the evidence produced by TOTAL SA enabled the
(ii)
presumption of decisive influence to be definitively rebutted;

— infringement of

the principles of

liability for one's own
sanctions to the person
actions and the limitation of
the
the principle of
concerned, and of
Commission found the existence of an economic unity
between TOTAL SA and TOTAL FRANCE;

in that

legality,

— infringement of the principles of legal certainty and sound
administration, inasmuch as the imputability to TOTAL SA
of the infringement allegedly committed by its subsidiary
TOTAL FRANCE was based on a new criterion and (ii) the
Commission did not assess the situation on a case-by-case
basis as it had stated it would do;

— misuse of powers, the object of Regulation No 1/2003 being
to penalise an undertaking for committing an infringement
of the competition rules and not to maximise the penalty
on that company by involving the parent company;

— infringement of the principle of proportionality in that the
final amount of the fine imposed on the applicant and its
subsidiary were entirely disconnected from the value of the
product sales in relation to the infringement alleged by the
decision; and

— reduction of the fine, the practices alleged being neither as
serious or as long in duration as the Commission claims,
the defence having been seriously
and the rights of
infringed.

Action brought on 16 December 2008 — Luxembourg v
Commission

(Case T-549/08)

(2009/C 44/103)

Language of the case: French

Parties

Applicant: Grand Duchy of Luxembourg (represented by: M.
Fisch, agent and P. Kinsch, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— annul the contested decisions;

— order the Commission to pay the costs.

Pleas in law and main arguments

to the single programming document

By this action, the applicant seeks the annulment of Commis-
sion Decision C(2008) 5383 of 24 September 2008 on the
suspension of interim payments from the European Social Fund
(ESF)
for Community
interventions falling under Objective No 3 to the
structural
Grand Duchy of Luxembourg, and Commission Decision
C(2008) 5730 of 6 October 2008 on the suspension of interim
payments from the Community initiative to combat discrimina-
tion and inequality in the employment market (EQUAL) to the
Grand Duchy of Luxembourg.

In support of its action, the applicant raises three pleas in law:

— an infringement of the principle of protection of legitimate
expectations, in so far as the Commission concluded, when
two preventive audits of the Luxembourg system of manage-
ment and monitoring were carried out prior
to the
programming period concerned, that that system provided
sufficient safeguards of compliance with the current rules
and the generally accepted criteria of good management;
only when an audit was carried out after expiry of the
programming period concerned did the Commission come
to unfavourable conclusions about the system of manage-
ment and monitoring;

— an incorrect interpretation of the regulatory provisions on
which the contested decisions are based (1), since those
provisions do not preclude, contrary to what Commission
has claimed, (i) the managing authority and the payment
authority belonging to the same institution and (ii)
the
national managing authority submitting to the Commission
a statement of expenditure as to which doubt may well exist,
but which at the time of statement has not been proved to
merit being legally classified as ineligible;

— substantive inaccuracy in some of the facts on which the
contested decisions are based as to record keeping by the
managing authority.

(1) Council Regulation (EC) No 1260/1999 of 21 June 1999 laying
down general provisions on the Structural Funds (OJ 1999 L 161,
p. 1) and Commission Regulation (EC) No 438/2001 of 2 March
2001 laying down detailed rules for the implementation of Council
Regulation (EC) No 1260/1999 as regards the management and
control systems for assistance granted under the Structural Funds
(OJ 2001 L 63, p. 21).