CELEX: C2003/055/96
Language: en
Date: 2003-03-08 00:00:00
Title: Case T-10/03: Action brought on 13 January 2003 by Jean-Pierre Koubi against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

C 55/40                EN                        Official Journal of the European Union                                         8.3.2003
The applicants claim that the Court should:                              —     infringement of the rules 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
—     pursuant to Article 230 of the Treaty, declare unlawful                  which the appropriate notification was received.
      Commission Decision No 02/229/EC of 13 November
      2001, published in the Official Journal on 20 March
                                                                         —     failure to assess the aid, when examining its compatibility,
      2002 and, accordingly, annul it in its entirety or in so far
      as necessary;                                                            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
—     in the alternative, order the Commission to compensate                   (EAGGF) amending and repealing certain Regulations and
      the Sardinian undertakings for the damage suffered                       the Community guidelines for State aid in the agriculture
      which is quantified as amounting to EUR 1 300 000                        sector (2000/C28/02) ( 2).
      (corresponding to the regional contribution which was
      not received), together with interest and any readjustment,        —     failure to apply the Guidelines on National Regional
      to be distributed in proportion to the costs incurred;                   Aid (3) and the Community guidelines on State aid for
                                                                               small and medium-sized enterprises ( 4).
—     order the Commission to pay the costs.
                                                                         Finally, the applicants allege failure to state reasons and
                                                                         misapplication to the present case of the derogation under
                                                                         Article 87(3) of the Treaty.
Pleas in law and main arguments
                                                                         (1 ) OJ 1999 L 160, p. 80.
                                                                         (2 ) OJ 2000 C 28, p. 2.
                                                                         (3 ) OJ 1998 C 74, p. 9.
The applicants, the two largest prestigious associations in the          (4 ) OJ 1992 C 213, p. 2.
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                Action brought on 13 January 2003 by Jean-Pierre Koubi
growers from being placed on an equal footing with those in              against the Office for Harmonisation in the Internal
other parts of Italy and in the rest of Europe, which would                             Market (Trade Marks and Designs)
have made it possible to have free competition in the market.
                                                                                                   (Case T-10/03)
In support of its arguments, the applicants allege:
                                                                                                   (2003/C 55/96)
—     infringement of Article 158 of the Treaty and of Declar-
      ation No 30 on Island Regions, annexed to the final act                                (Language of the case: French)
      of the Amsterdam Treaty.
—     infringement of Articles 2, 3, 5, 12 and 34 of the Treaty          An action against the Office for Harmonisation in the Internal
      and failure to apply the principles of equality and                Market (Trade Marks and Designs) was brought before the
      proportionality. The applicants point out in that respect          Court of First Instance of the European Communities on
      that the contested decision has rejected an aid scheme             13 January 2003 by Jean-Pierre Koubi, resident in Marseille
      intended to eliminate serious discrimination between               (France), represented by Katia Manhaeve, Avocat, with an
      Sardinian greenhouse growers and other Italian and                 address for service in Luxembourg. Additional party before the
      European greenhouse growers rather than to distort                 Office: Fabricas Lucia Antonio Betere, S.A. Flabesa.
      competition.
—     infringement of Article 32 in conjunction with Articles 33         The applicant claims that the Court should:
      to 37 of the Treaty. The applicants claim that the
      Commission was not entitled to adopt that decision                 —     set aside the decision of the Fourth Board of Appeal of
      inasmuch as it failed to take the precautions which must                 the Office for Harmonisation in the Internal Market of
      be taken in a sector such as agriculture in which, as a                  16 October 2002 in Case R 542/2001-4;
      rule, the competition rules are applied only to the extent
      determined by the Council.                                         —     order the Office to pay the costs.
 ---pagebreak--- 8.3.2003                EN                          Official Journal of the European Union                                             C 55/41
Pleas in law and main arguments                                             Pleas in law and main arguments
Applicant for regis-            Jean-Pierre Koubi
tration of a Community                                                      The applicant is a major general trading company in Japan.
trade mark:                                                                 Itochu Hellas, a local subsidiary of Itochu Europe and only
                                                                            indirectly a subsidiary of the applicant, concluded a distri-
Community mark con-             The word mark ‘conforflex’ for              bution agreement with Nintendo. The applicant indicates that
cerned:                         certain products in Class 20 (bed-          the distribution and sale of game consoles was never one of its
                                room furniture) (No 1171172).               core activities and that such activities were at the sole discretion
                                                                            of local subsidiaries, who operate with a large degree of
Marks put forward as            The national marks ‘flex’ and ‘flex’        independence.
grounds for refusal             for certain products in Class 20
under the opposition            (including beds, mattresses and
procedure                       pillows, bedding articles).                 In support of its application, the applicant claims that it cannot
                                                                            be held liable for an alleged infringement of Article 81 (1) of
Owner of the marks put          Fabricas Lucia Antonio Betere,              the EC Treaty on behalf of Itochu Hellas and, therefore, that it
forward as grounds for          S.A.
                                                                            is not the correct addressee of the contested decision. Accord-
refusal                                                                     ing to the applicant, the Commission should prove that a
Decision of the Oppo-           Dismissal of the opposition.                mother company exerted decisive influence over its subsidiary
sition Division:                                                            in order to hold the former liable for the acts of the subsidiary.
Decision of the Board of        Annulment of the decision of the
Appeal:                         Opposition Division and rejection           The applicant claims furthermore that the fine should be
                                of the application for registration         annulled or substantially reduced. The applicant invokes a lack
                                of the Community mark.                      of proper reasoning and an infringement of the principle of
                                                                            proportionality and equal treatment. The applicant claims that
Pleas in law:                   Infringement of the concept of              the Commission treated the applicant in the same way as other
                                risk of confusion.                          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.
Action brought on 16 January 2003 by Itochu Corpor-                         The applicant also claims that an increase for deterrence on
ation against the Commission of the European Communi-                       account of the applicant’s size and resources constitutes an
                                 ties                                       infringement of the principles of proportionality and equal
                                                                            treatment.
                           (Case T-12/03)
                          (2003/C 55/97)                                    Moreover, the applicant invokes a manifest error of assessment
                                                                            and a violation of the principle of proportionality insofar as
                    (Language of the case: English)                         the fine was increased to take into account the duration of the
                                                                            alleged infringement. The applicant also submits that the
                                                                            Commission should have applied a smaller increase by percent-
                                                                            age on account of duration as Itochu Hellas’ participation was
An action against the Commission of the European Communi-                   only passive.
ties was brought before the Court of First Instance of the
European Communities on 16 January 2003 by Itochu Corpor-
ation, Tokyo, Japan, represented by Mr Gerwin Van Gerven                    The applicant also puts forward that the Commission has
and Mr Thomas Franchoo, Lawyers.                                            infringed Article 253 of the EC Treaty and the principle of
                                                                            proportionality because it has refused to consider certain
The applicant claims that the Court should:                                 attenuating circumstances, like the very limited and exclusively
                                                                            passive role of Itochu Hellas and the fact that Itochu Hellas did
—     annul Articles 1, 3 and 5 of Commission decision                      not implement the restrictive practices. Furthermore, according
      C(2002) 4072 final of 30 October 2002 in Cases                        to the applicant, the Commission has violated the principle of
      COMP/35.587 PO Video games, COMP/35.706 Nintendo                      equal treatment by accepting attenuating circumstances in
      Distribution and COMP/36.321 Omega-Nintendo, inso-                    favour of other addressees and not for the applicant.
      far 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         The applicant finally invokes a violation of Article 15 (2) of
      fine;                                                                 Regulation 17 (1) insofar as the Commission imposed a fine
                                                                            that exceeds 10 % of Itochu Hellas’ turnover in the preceding
—     order the Commission to pay the costs.                                business year and a violation of its rights of defence insofar