Case T-562/08: Action brought on 16 December 2008 — Repsol YPF Lubricantes y especialidades and Others v Commission
Date: 2008-12-16
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), fixing of prices, market-sharing agreement

C 44/62

EN

Official Journal of the European Union

21.2.2009

— Annul Article 1 of

the

contested decision declaring:
(1) compensation paid by the French State to SNCM of
EUR 53,48 million an unlawful but compatible State aid;
(2) the negative sale price of SNCM of EUR 158 million as
not constituting State aid; and (3) restructuring aid of
EUR 15,81 million an unlawful but compatible State aid;

— Order the Commission to pay STIM d'Orbigny the costs and

expenses arising from the contested decision.

Pleas in law and main arguments

The applicant seeks the annulment of Commission decision
C(2008) 3182 final of 8 July 2008, in which the Commission
stated that:

— compensation paid by the French Republic to the Société
Nationale Maritime
of
EUR 53,48 million in respect of public service obligations
constituted State aid which was unlawful, but compatible
with the common market;

Corse-Méditerranée

(‘SNCM’)

— the negative sale price of EUR 158 million for SNCM, the
undertaking by the Compagnie Générale Maritime et Finan-
cière (‘CGMF’) of social measures towards employees for an
amount of EUR 38.5 million and the related and concomi-
tant recapitalisation of SNCM by CGMF for EUR 8,75 million
did not constitute State aid; and

— restructuring aid of EUR 15,81 million which the French
Republic put into operation in favour of SNCM constituted
State aid which was unlawful, but compatible with the
common market.

In support of
claiming:

its action,

the applicant makes three pleas,

— insufficient statement of reasons, in that the Commission:

— did not define the market under consideration or explain

the position of rival undertakings;

— did not reply to certain arguments of the Compagnie
Méridionale de Navigation operating on the market in
question; and

— did not find incompatibility with the common market of
the capital contribution exceeding EUR 15,81 million
declared compatible with the common market;

against the State in the event of
liquidation justified
regarding the sale of SNCM at a negative price as the
least costly solution;

— the capital contribution by CGMF of EUR 8,75 million,
the Commission not having taken into consideration all
the economic, financial and legal factors, and not having
proved that the contribution by CGMF did not constitute
State aid;

— the

current

account

contribution

of
EUR 38,5 million by way of social measures towards
employees, the latter placing SNCM in a more favourable
position than what would have resulted from the
market;

by CGMF

— the State aid of EUR 22,52 million, none of the grounds
permitting the conclusion that that aid was compatible
with Community guidelines having been verified in this
case;

— infringement of the principles of proportionality and of the
unitary nature of aid, in that the aid recipient SNCM did not
substantially contribute to the restructuring from its own
resources or from external financing obtained on market
conditions, and that the measures taken in 2006 constituted
unlawful support of an undertaking by the French Republic.

Action brought on 16 December 2008 — Repsol YPF
Lubricantes y especialidades and Others v Commission

(Case T-562/08)

(2009/C 44/106)

Language of the case: Spanish

Parties

Applicants: Repsol YPF Lubricantes y especialidades, SA (Madrid,
Spain), Repsol Petróleo, SA (Madrid, Spain), Repsol YPF, SA
(Madrid, Spain) (represented by: J Jiménez-Laiglesia Oñate and S.
Rivero Mena, lawyers)

— manifest errors of assessment concerning:

Defendant: Commission of the European Communities

— application of Article 86(2) EC to the capital contribu-
tion of EUR 53,48 million by way of public service
compensation,
inasmuch as that sum doubly compen-
sated the same public service obligations, giving rise to
rewarding of deficient
over-compensation and the
management and the inability of SNCM to improve its
productivity in an effective manner;

— the negative sale price of EUR 158 million for SNCM,
the
which cannot be free of elements of State aid;
Commission made an incorrect
the
interpretation of
conduct of a private investor in a market economy and
erred in holding that the risk of cumulation of liabilities

Form of order sought

— Annul Articles 1 and 2 of the Decision; and

— Order the Commission to pay the costs.

Pleas in law and main arguments

The decision which is the subject of the present action is the
same as that in Case T-540/08 Esso and Others v Commission.

21.2.2009

EN

Official Journal of the European Union

C 44/63

In support of its claims, the applicants submit that, in the first
instance, it has not been established that Repsol YPF Lubricantes
y especialidades S.A. (Rylesa) was involved in certain identified
conduct which has been dealt with on an individual basis for
the purposes of imposing a penalty. In particular, the Decision
did not produce sufficient evidence to show that Rylesa took
part in an agreement to share customers and markets.

the technical meetings was not

Nor does the Decision take account of the fact that the purpose
of
to share customers and
markets. Such practices, had they existed, would have occurred,
as some of the companies to which the Decision was addressed
have recognised, within the bilateral and multilateral contacts at
the fringes of the technical meetings. However, in the contested
Decision it is considered unnecessary to investigate such bilateral
and multilateral contacts, as a result of which the applicants
may not be deemed party to the infringement identified by the
Decision.
the Decision does not explain why
Rylesa is deemed liable for such conduct while at the same time
it clears other companies that were present at the technical
meetings put forward as evidence of such conduct.

In any event,

The applicants also contest the criteria used by the Commission
to determine the turnover of the relevant products and therefore
set the penalty applicable. First, the Decision does not precisely
define the products concerned by the infringement. Second, in
accordance with the 2006 Guidelines on the method of setting
fines, applicable to the present case, fines are to be set according
to the value of the sales made by a company during the last full
business year of its participation in an infringement. However,
in the present case, the Commission has departed from that
general rule, and has calculated the value of the fine by reference
to Rylesa's average sales volume between 2001 and 2003. At
no point did the Commission provide any reasons to justify
why, in the case of Rylesa, it disregarded the rules it set itself in
the Guidelines in order to apply a criterion (the average sales
value between the years 2001 and 2003), which, moreover,
substantially prejudices Rylesa. The value of sales to be taken
into account is ultimately that generated in 2003, as the Deci-
sion itself states, since that is the last full year in which the
Commission itself alleges that Rylesa participated in the infringe-
ment.

In the Decision, the Commission considers that any infringe-
ment by Rylesa was terminated by 4 August 2004. However,
there is not the slightest evidence that any infringement by
Rylesa persisted until that date. In particular, Rylesa is not a
party to the agreements or practices adopted in the technical
meetings which took place in the first half of 2004. Any infrin-
gement must be therefore be deemed to have terminated by
January 2004 or May 2004 at the latest.

the contested Decision disregards

Lastly,
the considerable
evidence put forward in the administrative procedure, in which
it was proved that Rylesa is a completely autonomous entity
from its parent company, Repsol Petróleo S.A. In any event,
case-law does not allow the Commission to extend liability for
an infringement committed by a company to the whole of the
group of which it forms part, which is why the liability of
Repsol YPF S.A. is not established.

Action brought on 16 December 2008 — CM Capital
Markets v OHIM — Carbon Capital Markets (CM Capital
Markets)

(Case T-563/08)

(2009/C 44/107)

Language in which the application was lodged: Spanish

Parties

Applicant: CM Capital Markets Holding, SA (Madrid, Spain),
(represented by: T. Villate Consonni and J. Calderón Chavero,
lawyers)

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

Other party to the proceedings before the Board of Appeal: Carbon
Capital Markets Ltd (London, United Kingdom)

Form of order sought

— Annul the decision of the First Board of Appeal of OHIM of
26 September 2008 in Case R-015/2008-1, which would
lead to the refusal of the contested mark in its entirety;

— Uphold the applicant's claims, and

— Order OHIM to pay the costs of the present proceedings

should they be contested and reject its claims.

Pleas in law and main arguments

Applicant
MARKETS LIMITED.

for a Community

trade mark: CARBON CAPITAL

Community trade mark concerned: The word mark ‘CARBON
CAPITAL MARKETS’ (Application No 4 480 208) for services
in class 36.

Proprietor of the mark or sign cited in the opposition proceedings: The
applicant.

Mark or sign cited in opposition: The national and Community
figurative marks ‘CAPITAL MARKETS’ for services in class 36.

Decision of the Opposition Division: Opposition rejected.

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.