Source: EURLEX
Language: en
Format: md

C 55/40 EN Official Journal of the European Union 8.3.2003

The applicants claim that the Court should:

—
pursuant to Article 230 of the Treaty, declare unlawful
Commission Decision No 02/229/EC of 13 November
2001, published in the Official Journal on 20 March
2002 and, accordingly, annul it in its entirety or in so far
as necessary;

—
in the alternative, order the Commission to compensate
the Sardinian undertakings for the damage suffered
which is quantified as amounting to EUR 1 300 000
(corresponding to the regional contribution which was
not received), togetherwith interest andany readjustment,
to be distributed in proportion to the costs incurred;

—
order the Commission to pay the costs.

_Pleas in law and main arguments_

The applicants, the two largest prestigious associations in the
agriculture sector, contest the decision of the defendant which
found contrary to the common market the aid scheme laid
down in Article 21 of Region of Sardinia Law No 21/2000
which provides for the reduction of production costs linked to
the use of fuels other than methane. The object of that scheme
is to compensate for the extremely high cost of heating fuel
available in Sardinia (diesel). According to the applicants,
the contested decision has prevented Sardinian greenhouse
growers from being placed on an equal footing with those in
other parts of Italy and in the rest of Europe, which would
have made it possible to have free competition in the market.

In support of its arguments, the applicants allege:

—
infringement of Article 158 of the Treaty and of Declaration No 30 on Island Regions, annexed to the final act
of the Amsterdam Treaty.

—
infringement of Articles 2, 3, 5, 12 and 34 of the Treaty
and failure to apply the principles of equality and
proportionality. The applicants point out in that respect
that the contested decision has rejected an aid scheme
intended to eliminate serious discrimination between
Sardinian greenhouse growers and other Italian and
European greenhouse growers rather than to distort
competition.

—
infringement of Article 32in conjunction with Articles 33
to 37 of the Treaty. The applicants claim that the
Commission was not entitled to adopt that decision
inasmuch as it failed to take the precautions which must
be taken in a sector such as agriculture in which, as a
rule, the competition rules are applied only to the extent
determined by the Council.

—
infringementof therules which govern procedure relating
to State aid, inasmuch as the decision was adopted after
the expiry of the two-month period from the date on
which the appropriate notification was received.

—
failure to assess the aid, when examining its compatibility,
in the light of Council Regulation (EC) No 1257/1999 ( [1] )
of 17 May 1999 on support for rural development from
the European Agricultural Guidance and Guarantee Fund
(EAGGF) amending and repealing certain Regulations and
the Community guidelines for State aid in the agriculture
sector (2000/C28/02) ( [2] ).

—
failure to apply the Guidelines on National Regional
Aid ( [3] ) and the Community guidelines on State aid for
small and medium-sized enterprises ( [4] ).

Finally, the applicants allege failure to state reasons and
misapplication to the present case of the derogation under
Article 87(3) of the Treaty.

( [1] ) OJ 1999 L 160, p. 80.
( [2] ) OJ 2000 C 28, p. 2.
( [3] ) OJ 1998 C 74, p. 9.
( [4] ) OJ 1992 C 213, p. 2.

**Action brought on 13 January 2003 by Jean-Pierre Koubi**
**against the Office for Harmonisation in the Internal**
**Market (Trade Marks and Designs)**

**(Case T-10/03)**

(2003/C 55/96)

_(Language of the case: French)_

An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on
13 January 2003 by Jean-Pierre Koubi, resident in Marseille
(France), represented by Katia Manhaeve, Avocat, with an
address for service in Luxembourg. Additional party before the
Office: Fabricas Lucia Antonio Betere, S.A. Flabesa.

The applicant claims that the Court should:

—
set aside the decision of the Fourth Board of Appeal of
the Office for Harmonisation in the Internal Market of
16 October 2002 in Case R 542/2001-4;

—
order the Office to pay the costs.

8.3.2003 EN Official Journal of the European Union C 55/41

_Pleas in law and main arguments_

Applicant for regis- Jean-Pierre Koubi
tration of a Community
trade mark:

Community mark con- The word mark ‘conforflex’ for
cerned: certain products in Class 20 (bedroom furniture) (No 1171172).

Marks put forward as The national marks ‘flex’ and ‘flex’
grounds for refusal for certain products in Class 20
under the opposition (including beds, mattresses and
procedure pillows, bedding articles).

Owner of the marks put Fabricas Lucia Antonio Betere,
forward as grounds for S.A.
refusal

Decision of the Oppo- Dismissal of the opposition.
sition Division:

Decision of the Board of Annulment of the decision of the
Appeal: Opposition Division and rejection
of the application for registration
of the Community mark.

Pleas in law: Infringement of the concept of
risk of confusion.

**Action brought on 16 January 2003 by Itochu Corpor-**
**ation against the Commission of the European Communi-**
**ties**

**(Case T-12/03)**

(2003/C 55/97)

_(Language of the case: English)_

An action against the Commission of the European Communities was brought before the Court of First Instance of the
European Communities on 16 January2003 by Itochu Corporation, Tokyo, Japan, represented by Mr Gerwin Van Gerven
and Mr Thomas Franchoo, Lawyers.

The applicant claims that the Court should:

—
annul Articles 1, 3 and 5 of Commission decision
C(2002) 4072 final of 30 October 2002 in Cases
COMP/35.587 PO Video games, COMP/35.706 Nintendo
Distribution and COMP/36.321 Omega-Nintendo, insofar as it finds an infringement on Article 81 (1) of the EC
Treaty, imposes a fine upon and addresses the decision to
the applicant, or alternatively, to substantially reduce that
fine;

—
order the Commission to pay the costs.

_Pleas in law and main arguments_

The applicant is a major general trading company in Japan.
Itochu Hellas, a local subsidiary of Itochu Europe and only
indirectly a subsidiary of the applicant, concluded a distribution agreement with Nintendo. The applicant indicates that
the distribution and sale of game consoles was never one of its
core activities and that such activities were at the sole discretion
of local subsidiaries, who operate with a large degree of
independence.

In support of its application, the applicant claims that it cannot
be held liable for an alleged infringement of Article 81 (1) of
the EC Treaty on behalf of Itochu Hellas and, therefore, that it
is not the correct addressee of the contested decision. According to the applicant, the Commission should prove that a
mother company exerted decisive influence over its subsidiary
in order to hold the former liable for the acts of the subsidiary.

The applicant claims furthermore that the fine should be
annulled or substantially reduced. The applicant invokes a lack
of proper reasoning and an infringement of the principle of
proportionality and equal treatment. The applicant claims that
the Commission treated the applicant in the same way as other
undertakings without enabling the applicant to assess the
figures on which the Commission relied.

The applicant submits that the Commission had no grounds
to increase the fine to ensure deterrence considering that
Itochu Hellas should have been the addressee of the decision.
The applicant also claims that an increase for deterrence on
account of the applicant’s size and resources constitutes an
infringement of the principles of proportionality and equal

treatment.

Moreover, the applicant invokes a manifest error of assessment
and a violation of the principle of proportionality insofar as
the fine was increased to take into account the duration of the
alleged infringement. The applicant also submits that the
Commission should haveapplied a smaller increase by percentage on account of duration as Itochu Hellas’ participation was
only passive.

The applicant also puts forward that the Commission has
infringed Article 253 of the EC Treaty and the principle of
proportionality because it has refused to consider certain
attenuating circumstances, like the very limited and exclusively
passive role of Itochu Hellas and the fact that Itochu Hellas did
not implement therestrictive practices.Furthermore, according
to the applicant, the Commission has violated the principle of
equal treatment by accepting attenuating circumstances in
favour of other addressees and not for the applicant.

The applicant finally invokes a violation of Article 15 (2) of
Regulation 17 ( [1] ) insofar as the Commission imposed a fine
that exceeds 10 % of Itochu Hellas’ turnover in the preceding
business year and a violation of its rights of defence insofar