Case T-587/08: Action brought on 31 December 2008 — Fresh Del Monte Produce v Commission
Date: 2008-12-31
Institutions: Court of First Instance
Subjects: EU Member State, European Commission, Northern Europe, action for annulment (EU), disclosure of information, exchange of information, fine, infringement of EU law, tropical fruit

C 44/66

EN

Official Journal of the European Union

21.2.2009

— infringement of Article 87(2)(b) EC and of the guidelines
applicable to State aid in the agricultural sector, and breach
of the Commission's own working practice — and, in any
case, erroneous assessment of the facts and failure to state
sufficient reasons — in so far as the Commission found that
the financial aid scheme duly notified by the Italian
authorities could not be treated as an exception under
Article 87(2)(b) EC;

— infringement of Article 87(3)(c) EC — and, in any case, erro-
neous assessment of the facts and failure to state sufficient
reasons — in so far as the Commission found that the finan-
cial aid scheme duly notified by the Italian authorities could
not be treated as an exception under Article 87(3)(c) EC;

— breach of the principles of sound administration and dili-
gence and of the duty of care, by reason inter alia of the
excessive length of the administrative procedure.

Action brought on 24 December 2008 — PJ Hungary/
OHIM v Pepekillo (PEPEQUILLO)

(Case T-580/08)

(2009/C 44/112)

Language in which the application was lodged: Spanish

Parties

Applicant: PJ Hungary Szolgáltató (PJ Hungary kft), (Budapest,
Republic of Hungary) (represented by: M. Granado Carpenter
and C. Gutiérrez Martínez, lawyers)

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

Other party to the proceedings before the Board of Appeal: Pepekillo
SL (Algeciras, Spain)

Form of order sought

— Annul the decision of 30 April 2008 (Case R-722/2007) of
the First Board of Appeal of the Office for Harmonisation in
the Internal Market (OHIM), which granted the restitutio in
integrum claimed by PEPEKILLO SL;

— Annul

the

decision of 24 September 2008 (Case
R-722/2007) of the First Board of Appeal of the Office for
Harmonisation in the Internal Market (OHIM), which set
aside the decision of the Opposition Division of 9 March
2007 and, as a result, granted Community trade mark
No 3 546 471 ‘PEPEQUILLO’, and make such other order as
is appropriate in accordance with Community law; and

— Order the defendant to pay the costs of the present proceed-
ings, in addition to the costs incurred during the administra-
tive procedure before OHIM.

Pleas in law and main arguments

Applicant for a Community trade mark: Marta Sancho Lora, who
subsequently
company
PEPEKILLO SL.

application to the

assigned

the

Community trade mark concerned: The word mark ‘PEPEQUILLO’
(Application No 3.546.471) for goods in classes 18 and 25 and
services in class 35.

Proprietor of the mark or sign cited in the opposition proceedings: The
to whom the company ‘PEPE JEANS N.V.’ had
applicant,
assigned its rights.

‘PEPE M3’,

Mark or sign cited in opposition: Spanish word marks ‘PEPE’ and
‘PEPE JEANS’, Spanish figurative marks ‘PEPE JEANS LONDON’,
Spanish word marks ‘PEPE 2XL’,
‘PEPE
‘PEPE F4’,
‘PEPE M5’ and ‘PEPE F6’, Spanish figurative
F4’,
marks ‘PEPE JEANS LONDON’,
‘PEPE JEANS
‘PEPE JEANS 73’,
PORTOBELLO’,
‘PEPE’ and Spanish word marks ‘PEPE JEANS
M2’, ‘PEPE BETTY’, ‘PEPE CLOTHING’ and ‘PEPECO’, for goods
in classes 3, 9, 14, 18 and 25; and Community word and
figurative marks ‘PEPE JEANS’ for goods in classes 3, 9, 14
and 18.

‘PEPE M99’,

Decision of the Opposition Division: Opposition upheld and appli-
cation refused

Decision of the Board of Appeal: Pleas in law admitted and appeal
upheld.

Pleas in law:
Incorrect application of Articles 78 and 8(1)(b)
and (5) of Regulation No 40/94 on the Community trade mark.

Action brought on 31 December 2008 — Fresh Del Monte
Produce v Commission

(Case T-587/08)

(2009/C 44/113)

Language of the case: English

Parties

Applicant: Fresh Del Monte Produce Inc. (George Town, Cayman
lawyer and E. Verghese,
Islands)
solicitor)

(represented by: B. Meyring,

Defendant: Commission of the European Communities

21.2.2009

EN

Official Journal of the European Union

C 44/67

Form of order sought

had engaged in a concerted practice with the object of
restricting competition.

— annul Articles 1, 2, 3 and 4 of Commission decision
C(2008) 5955 final of 15 October 2008 in Case
COMP/39.188 — Bananas insofar as it pertains to it;

— alternatively, to substantially reduce the fine imposed on the

applicant pursuant to Article 2c of that decision;

— alternatively, to annul Articles 1 and 3 of that decision so

far as they pertain to it;

— order the Commission to pay the costs.

Pleas in law and main arguments

to Article 230 EC of

By means of this application, the applicant seeks annulment
pursuant
the Commission Decision
C(2008) 5955 final of 15 October 2008 (Case COMP/39.188
— Bananas) relating to a proceeding under Article 81(1) EC
which held it jointly and severally liable for the conduct of Inter-
nationale Fruchtimport Gesellscaft Weichert & Co. The Commis-
sion held that Weichert had infringed Article 81 EC by partici-
pating in a concerted practice of coordination of quotation
prices for bananas imported to the eight Member States of the
Northern European region of the Community. Alternatively, it
seeks the amendment of Article 2(c) of the Decision in so far as
it imposes a fine on the applicant.

In support of its claims, the applicant puts forward eight pleas,
presented in four parts.

In the first part, the applicant puts forward the pleas in support
of its claim for annulment of the decision to hold it jointly and
severally liable for the conduct of Weichert.

First, it submits that the Commission misapplied Article 81(1)
EC and Article 23(2)(a) of Regulation No 1/2003 (1) in finding
the applicant jointly and severally liable for Weichert's conduct
on the basis of a distribution agreement and its indirect interest
in Weichert as a limited partner (Kommanditist), neither of which
(alone or in combination) gave the applicant decisive influence
over Weichert.

Second, the applicant argues that the Commission infringed
Article 253 EC by failing to provide reasons for attributing liabi-
lity to the applicant, a company that had no direct relationship
with Weichert.

Third, it contends that the Commission violated the applicant's
right of defence by refusing to disclose relevant evidence.

The secondary and alternative pleas are put forward by the
applicant in support of its claim of annulment of the contested
decision in so far as it relates to both the applicant and
Weichert. In this part of its application, the applicant raises
fourth and fifth plea.

The fifth plea relates to a breach of the applicant's rights of
defence in that it was not granted the right to be heard as a
result of a fundamental shift in the Commission's case between
the statement of objections and the decision.

In the third part of its application (also in the alternative), the
applicant puts forward the precautionary pleas in support of its
claim seeking the reduction of the fine imposed jointly and
severally on the applicant and Weichert. This part comprises
sixth and seventh pleas.

By its sixth plea, the applicant argues that the Commission
committed a manifest error of assessment in determining the
level of the fine by failing to properly assess gravity.

The seventh plea relates to a violation of Article 23 of Regu-
lation No 1/2003 and of legitimate expectations by the reason
of
the Commission failed to take account of
Weichert's cooperation in the investigation.

the fact

that

The fourth part of the application seeks the annulment of Arti-
cles 1 and 3 of the decision in respect of the applicant on the
basis of the eight pleas stating that those Articles involve a
misapplication of Article 81 EC, a violation of Article 7 of
Regulation No 1/2003 and a violation of Article 253 EC.

(1) 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 L 1, p. 1.

Action brought on 24 December 2008 — Dole Food and
Dole Germany v Commission

(Case T-588/08)

(2009/C 44/114)

Language of the case: English

Parties

Applicants: Dole Food Company,
(Wilmington, United
States) and Dole Germany OHG (Hamburg, Germany) (repre-
sented by: J.-F. Bellis, lawyer)

Inc.

The fourth plea relates to a misapplication of Article 81 EC by
reason of the fact that the Commission concluded that Weichert

Defendant: Commission of the European Communities