CELEX: C2002/068/26
Language: en
Date: 2002-03-16 00:00:00
Title: Case T-324/01: Action brought on 11 December 2001 by Axions S.A. and Christian Belce against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

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-
                                                                                     cant in restraining its implementation;
—     annul Article 1 of the contested decision in so far as it
      considers — in the case of Roquette — that the infringe-
      ment lasted from February 1987 to June 1995;                             —     minimised the nevertheless decisive nature of the
                                                                                     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)
 ---pagebreak--- 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
                                                                           integrated in the Mercedes-Benz distribution organisation and
Grounds of claim:                —     no obstacles to registration
                                                                           that agreements with commercial agents and commission
                                       under Article 7(1)(e) of Regu-
                                                                           agents 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 obstruc-
                                       Regulation (EC) No 40/94.           tion of exports from Germany fails to meet the conditions laid
                                                                           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 Communi-                  constitute 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 DaimlerCh-                     any 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
—     in the alternative, reduce the fine imposed in Article 3 of          ‘German’ facts, and that, in any case, it was entitled to assume,
      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