Source: EURLEX
Language: en
Format: md

C 68/14 EN Official Journal of the European Communities 16.3.2002

—
The applicant claims that the Court should: assessed the role played by Roquette in the cartel
without taking account of part played by he appli— annul Article 1 of the contested decision in so far as it cant in restraining its implementation;
considers — in the case of Roquette — that the infringe- — minimised the nevertheless decisive nature of the
ment lasted from February 1987 to June 1995;
information supplied by Roquette to prove the
existence of the cartel and to explain the way in
— annul Article 3 of the contested decision in so far as it which it worked;
imposes a fine of 10,8 million euros on Roquette Frères;

—
violation of the principle ne bis in idem, inasmuch as the
— in the exercise of its unlimited jurisdiction, reduce the Commission failed to take account of the fact that
amount of the fine imposed on Roquette Frères; Roquette had already been fined $ 2 500 000 by the US
authorities on account of a breach concerning the same
— subject-matter as that giving rise to the contested decision.
order the Commission to pay the costs.

_Pleas in law and main arguments_

**Action brought on 11 December 2001 by Axions S.A.**
By a decision adopted on 2 October 2001, the European Union
**and Christian Belce against the Office for Harmonisation**
imposed on the applicant company a fine of 10,8 million euros
**in the Internal Market (Trade Marks and Designs)**
for having participated, together with other producers of
sodium gluconate, in an agreement and/or concerted practice
covering the entire European Economic Area whereby they **(Case T-324/01)**
shared out sales quotas between them, fixed the price of the
product concerned and colluded as to the attribution of
(2002/C 68/26)
contracts concluded with customers.

_(Language of the case: German)_
By the present action, the applicant is contesting solely the
level of the fine imposed. In support of its claims, it pleads:

— An action against the Office for Harmonisation in the Internal
infringement of Article 15 of Regulation No 17 and Market (Trade Marks and Designs) was brought before the
violation of the principles of equality and proportionality, Court of First Instance of the European Communities on
inasmuch as the Commission failed adequately to assess 11 December 2001 by Axions S.A., of Geneva (Switzerland),
either the seriousness or the duration of the breach. More and Christian Belce, of Veyrier (Switzerland), represented by
particularly, according to the applicant, the defendant C. Eckhartt, lawyer.
included, in the turnover figure used to calculate the basic
amount of the fine, the sales volumes relating to another
product (stock-solutions) which never formed the subject- The applicant claims that the Court should:
matter of the breach. In addition, the Commission fixed
the date of the breach as June 1995, whereas the leader —
annul the decision adopted on 26 September 2001 by
of the cartel in the Commission’s eyes itself confirmed
the Third Board of Appeal of the Office for Harmonisation
that Roquette had decided to cease providing statistics
in the Internal Market (Trade Marks and Designs) in Case
from 1994 onwards and various items of evidence arising
No R 599/2001-3;
from the Commission’s investigations and from the
cooperation provided by the various undertakings —
order the defendant Office to pay the costs.
showed that Roquette had left the cartel in 1994;

—
misapplication by the Commission of its guidelines for
calculating fines, as regards mitigating factors, and of its _Pleas in law and main arguments_
communication concerning the non-imposition of fines
or the reduction of the amount thereof in cartel cases. The
applicant asserts in that connection that the defendant:

The trade mark con- a three-dimensional mark rep— assessed the supposed effects of the cartel without cerned: resenting a cigar, brown in colour
taking account of the information and evidence
provided by the applicant, which show the limited Goods or services: goods in Class 30 (chocolate,
effect which the cartel had on the market for the chocolate goods, bakery wares
product in question; and confectionery)

16.3.2002 EN Official Journal of the European Communities C 68/15

Decision contested befo- refusal of registration by the vehicles to leasing companies as stock, and was party to
re the Board of Appeal: examiner agreements restricting the grant of discounts in Belgium.

Decision of the Board of rejection of the appeal
Appeal:
The applicant claims that the Mercedes-Benz agents are
Grounds of claim: — no obstacles to registration integrated in the Mercedes-Benz distribution organisation and
that agreements with commercial agents and commission
under Article 7(1)(e) of Reguagents are genuine agency agreements to which the prohibition
lation (EC) No 40/94 ( [1] );
on restrictive practices set out in Article 81(1) EC does not
— sufficient distinctiveness apply. The applicant further submits that everything of which
under Article 7(1)(b) of the Commission accuses Mercedes-Benz regarding the obstruction of exports from Germany fails to meet the conditions laid
Regulation (EC) No 40/94.
down in Article 81(1) EC. Mercedes-Benz is entitled to lay
down rules for both its commercial agents and its dealers on
( [1] ) Council Regulation (EC) No 40/94 of 20.12.1993 on the Com- sales to non-resident persons. Irrespective of the foregoing, the
munity trade mark (OJ 1994 L 11, p. 1). applicant claims that the documentary evidence does not
establish that Mercedes-Benz obstructed cross-border sales
to foreign consumers. Mercedes-Benz’s sole interest was in
restricting transactions with non-authorised resellers.

The applicant claims that its instruction to agents to require a
15 % advance payment from foreign customers was not a part
**Action brought on 20 December 2001 by DaimlerChrys-**
of any agreements in restraint of trade between Mercedes-Benz
**ler AG against the Commission of the European Com-**
and its agents. The purpose of that instruction was to reduce
**munities**
Mercedes-Benz’s risk exposure and it concerned the conditions
applicable to contracts for new cars, which were merely
**(Case T-352/01)** negotiated by the agent and in which he did not participate.
Irrespective of the foregoing, the applicant claims that the
requirement of deposits from foreign customers is materially
(2002/C 68/27)
justified.

_(Language of the case: German)_
The applicant further claims that the restrictions on German
agents as regards the brokerage of sales of new cars to leasing
companies do not infringe Article 81(1) EC because they
An action against the Commission of the European Communiconstitute permissible instructions to commercial agents. Even
ties was brought before the Court of First Instance of the
if there were an infringement of Article 81(1) EC, it would in
European Communities on 20 December 2001 by DaimlerChany case be exempted under Article 81(3) EC in conjunction
rysler AG, Stuttgart (Germany), represented by R. Bechtold and with Regulation No. 1475/95( [1] ).
W. Bosch, lawyers.

The applicant claims that the Court should: Furthermore, the applicant submits that Mercedes-Benz did
not carry out, or participate in, any ‘sale-price fixing’ in
— annul the Commission’s decision of 10 October 2001 Belgium which can be imputed to the applicant. Finally, it
(COMP/36.246 — Mercedes-Benz); claims that the special status of commercial agents is in itself
enough to preclude the imposition of a fine on the basis of the
— ‘German’ facts, and that, in any case, it was entitled to assume,
in the alternative, reduce the fine imposed in Article 3 of
that decision; on the basis of earlier statements by the Commission, that its
previous practice did not infringe Article 81(1) EC. In addition,
— the applicant submits that even if the application of
order the Commission to pay the applicant’s costs.
Article 81(1) is not precluded on legal grounds, the fine is, in
any case, clearly excessive.

_Pleas in law and main arguments_
( [1] ) Commission Regulation (EC) No 1475/95 of 28 June 1995 on
the application of Article 85(3) of the Treaty to certain categories
By the contested decision, the Commission imposed a fine of of motor vehicle distribution and servicing agreements (OJ 1995
EUR 71 825 million on the applicant for three infringements L 145 p. 25)
of Article 81(1) of the EC Treaty. The Commission found that
the applicant and its legal predecessors took measures to
restrict parallel trade, restricted the supply of passenger motor