CELEX: C2002/169/61
Language: en
Date: 2002-07-13 00:00:00
Title: Case T-118/02: Action brought on 16 April 2002 by Arjo Wiggins Appleton Limited against the Commission of the European Communities

C 169/34              EN                      Official Journal of the European Communities                                      13.7.2002
Proprietor of the right to   Elf Atochem North America, Inc.             The applicant claims that the Court should:
the trade mark or sign       now called Atofina Chemicals Inc.
asserted by way of oppo-
sition in the opposition                                                 —     annul or, alternatively, substantially reduce the fine
proceedings:                                                                   imposed on the applicant pursuant to Commission
                                                                               Decision C(2001)4573 final corr. of 20 December 2001
                                                                               relating to a proceeding pursuant to Article 81 of the EC
Trade mark or sign           The national and international                    Treaty and Article 53 of the EEA Agreement (Case COMP/
asserted by way of oppo-     figurative marks ‘Biomet’ and the                 E-1/36.212 — Carbonless paper);
sition in the opposition     national word mark ‘Biomet’ for
proceedings:                 certain goods in classes 1 and 5
                                                                         —     order the Commission to pay the applicant’s legal and
                                                                               other costs and expenses in relation to this matter.
Decision of the Oppo-        Rejection of the opposition of
sition Division:             Atofina Chemicals Inc.
Decision of the Board of     Partial annulment of the Oppo-
Appeal:                      sition Division’s decision.                 Pleas in law and main arguments
Grounds of claim:            Violation of Article 17(2) of Com-
                             mission       Regulation       2868/        In the contested Decision, the Commission found that the
                             95 (1)since a translation into the          applicant and ten other manufacturers of carbonless paper had
                             language of the procedure of the            infringed Article 81(1) of the EC Treaty and Article 53(1) of
                             evidence submitted was not filed            the EEA Agreement by participating in a complex of agree-
                             in due time.                                ments and concerted practices by which they fixed price
                                                                         increases, allocated sales quotas and fixed market shares and
                                                                         set up machinery to monitor the implementation of the
                                                                         restrictive agreements.
(1) Commission Regulation (EC) No 2868/95 of 13 December
    1995 implementing Council Regulation (EC) No 40/94 on the
    Community trade mark (OJ L 303 of 15.12.1995, p. 1).                 The applicant submits that the Commission erred in respect of
                                                                         each of the stages of its calculation of the applicant’s fine:
                                                                         —     it imposed an amount for ‘gravity’ (EUR 70 million) that
                                                                               was disproportionately high;
                                                                         —     it increased this amount by 100 % for ‘deterrence’ for no
                                                                               good reason;
                                                                         —     it imposed a further increase of 50 % for ‘leadership’
Action brought on 16 April 2002 by Arjo Wiggins                                which was entirely disproportionate to the role played by
Appleton Limited against the Commission of the Euro-                           the applicant; and
                      pean Communities
                                                                         —     it granted an insufficient reduction for cooperation.
                        (Case T-118/02)
                                                                         In addition, the applicant alleges that the Commission failed
                        (2002/C 169/61)                                  to take account of the economic difficulties of the carbonless
                                                                         paper market as an attenuating circumstance to reduce the
                                                                         level of the fine; it breached the applicant’s rights of defence;
                  (Language of the case: English)                        and it made a series of mistakes of a kind that it ought not to
                                                                         have made in a decision imposing a EUR 185 million fine.
                                                                         The applicant submits that the combination of these errors
An action against the Commission of the European Communi-                resulted in almost 60 % of the total of the fines handed down
ties was brought before the Court of First Instance of the               being imposed on the applicant alone, which is clearly out of
European Communities on 16 April 2002 by Arjo Wiggins                    proportion to the applicant’s market share.
Appleton Limited, represented by Mr François Brunet, Mr John
Temple Lang and Mr Jacob Grierson of Cleary, Gottlieb, Steen
& Hamilton, Paris (France).