CELEX: C2003/070/07
Language: en
Date: 2003-03-22 00:00:00
Title: Case C-12/03 P: Appeal brought on 13 January 2003 by the Commission of the European Communities against the judgment delivered on 25 October 2002 by the First Chamber of the Court of First Instance of the European Communities in case T-5/02 between Tetra Laval BV and the Commission of the European Communities

22.3.2003             EN                        Official Journal of the European Union                                              C 70/3
5.   Does this apply also where it may be assumed that the              Pleas in law and main arguments
     person will be released after an insignificant, reasonable
     time, but must then submit to treatment for drug abuse             —     Infringement of Article 8(1)(b) of Regulation No 40/
     and will not be able to take up employment until he has                  94; the trade mark applied for, ‘MATRATZEN markt
     completed additional school education?                                   CONCORD’, which consists of three words and a figurat-
                                                                              ive element, and the opposing earlier trade mark, ‘Matrat-
6.   Is Article 14(1) of Decision No 1/80 to be interpreted as                zen’, are not similar, but completely different. The Court
     meaning that the court requires to take into account a                   of First Instance did not base its assessment on the overall
     change in circumstances which occurs after the most                      impression created by the marks and thus failed to have
     recent administrative decision and which is favourable to                regard to the principles established in the judgment of
     the person concerned such that it would preclude the                     the Court of Justice in Case C-251/95 (SABEL). The
     application of any of the limitations in Article 14 of                   finding that the word ‘MATRATZEN’ alone is the domi-
     Decision No 1/80?                                                        nant feature of the trade mark applied for is contrary to
                                                                              the rules of logic and to experience.
                                                                        —     Breach of the principle of the free movement of goods
                                                                              (Articles 28 and 30 EC); the opposition based on the
                                                                              earlier mark is an abuse of a formal legal position. This
                                                                              was not sufficiently assessed by the Court of First Instance.
Appeal brought on 7 January 2003 by Matratzen Concord
GmbH, formerly Matratzen Concord AG, against the
judgment delivered on 23 October 2002 by the Fourth                     (1 ) OJ 2003 C 19.
Chamber of the Court of First Instance of the European
Communities in Case T-6/01 between Matratzen Concord
GmbH, formerly Matratzen Concord AG, and the Office
for Harmonisation in the Internal Market (Trade Marks
                         and Designs)
                        (Case C-3/03 P)
                                                                        Appeal brought on 13 January 2003 by the Commission
                        (2003/C 70/06)                                  of the European Communities against the judgment deliv-
                                                                        ered on 25 October 2002 by the First Chamber of the
                                                                        Court of First Instance of the European Communities in
                                                                        case T-5/02 between Tetra Laval BV and the Commission
An appeal against the judgment delivered on 23 October 2002                              of the European Communities
by the Fourth Chamber of the Court of First Instance of the
European Communities in Case T-6/01 between Matratzen
Concord GmbH, formerly Matratzen Concord AG, and the                                             (Case C-12/03 P)
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) was brought before the Court of Justice of the
European Communities on 7 January 2003 by Matratzen                                               (2003/C 70/07)
Concord GmbH, represented by Dr Wolf-W. Wodrich,
Rechtsanwalt, Huyssenallee 58-64, D-45128 Essen, with an
address for service in Luxembourg, assisted by Patentanwälte
Zenz, Helber, Hosbach & Partner, Huyssenallee 58-64, D-                 An appeal against the judgment delivered on 25 October 2002
45128 Essen.                                                            by the First Chamber of the Court of First Instance of the
                                                                        European Communities in case T-5/02 (1) between Tetra Laval
                                                                        BV and the Commission of the European Communities,
The appellant claims that the Court should:                             was brought before the Court of Justice of the European
                                                                        Communities on 13 January 2003 by the Commission of the
—    set aside the judgment of the Court of First Instance of           European Communities, represented by Michel Petite, Anthony
     the European Communities of 23 October 2002 in Case                Whelan and Per Hellström, acting as agents, with an address
     T-6/01 ( 1),                                                       for service in Luxembourg.
—    reject the opposition of the other party to the proceedings
     before the Board of Appeal of 21 April 1998 (OHIM ref.:
                                                                        The Appellant claims that the Court should:
     B 32 500),
—    order OHIM and the other party to the proceedings                  —     annul the judgment of the Court of First Instance of
     before the Board of Appeal to pay the costs of the                       25 October 2002 in case T-5/02, Tetra Laval BV v
     proceedings before the Opposition Division and before                    Commission;
     the Board of Appeal of OHIM, as well as the costs of the
     proceedings on the action and on this appeal.                      —     order Tetra Laval BV to pay the Commission’s costs.
 ---pagebreak--- C 70/4                EN                        Official Journal of the European Union                                         22.3.2003
Pleas in law and main arguments                                         and 8 of the Regulation by requesting the Commission to take
                                                                        into account the impact of the illegality of certain conduct and
                                                                        to assess as potential remedies promises not to engage in
                                                                        abusive behaviour.
1.   Error of law regarding the standards of proof and of
     judicial review
                                                                        The Court of First Instance’s interpretation is also inconsistent,
                                                                        in part, with general principles of Community law (the
                                                                        principle of equality and the presumption of innocence). In
The Commission submits that the Court of First Instance erred           reaching its findings, the Court of First Instance also distorted
in law on two related grounds:                                          the content of the Decision (3). The results of these errors of
                                                                        law permeate the whole of the Court of First Instance’s
1)    that the standard of judicial review invoked by the Court         assessment of the Decision and affect the outcome of the
      of First Instance in the contested judgment is self-              present case. As a result, the judgment should be set aside.
      contradictory and inconsistent with both Article 230 EC
      and Article 2 of the Merger Regulation ( 2);
2)    that in the application of this standard of judicial review,
      the Court of First Instance exceeded the role of the              3. Error of law in not upholding the Commission’s market
      Community Courts in reviewing the administrative acts                  definition of end-use-specific product markets for SBM
      of the Commission, in particular by substituting its view              machinery
      for that of the Commission on a number of central
      points.
                                                                        The Commission submits that the Court of First Instance erred
The Commission submits that the Court of First Instance                 in law and infringed, in particular, Article 2 of the Merger
contradicts itself by purporting to apply a standard of review          Regulation by holding that ‘the contested decision does not
based on manifest error of assessment while, in reality,                provide sufficient evidence to justify the definition of distinct
applying a different standard.                                          sub-markets among SBM machines with reference to their
                                                                        end-use’ and that ‘consequently the only sub-markets it is
                                                                        necessary to consider are those for low and high capacity
                                                                        machines’.
The Commission also submits that the standard of proof
required by the Court of First Instance in the contested
judgment exceeds the standard of review of the legality of
Community acts. Article 230 EC grants the Community Courts
the competence to review the legality of acts of the institutions.
The Commission considers that the Court of First Instance,
whilst referring to ‘manifest error of assessment’ in the               4. Error of law in not upholding the Commission’s finding
                                                                             of strengthening of Tetra’s carton dominance —
judgment, has in fact significantly raised the level of standard
of proof required from the Commission to prohibit a conglom-                 infringement of Article 2 of the Regulation, distortion
                                                                             of the facts and failure to take into account the
erate merger and has thereby gone beyond the review of
legality. In essence, the Court attempts to apply a standard                 Commission’s arguments
based on the need for the Commission to ‘convince’ the Court
rather than on the necessity for the Applicant to show either
an error of act or of law or a manifest error of assessment on
the part of the Commission. This standard leads the Court of            The Commission respectfully submits that the Court of First
First Instance unlawfully to substitute its own assessment for          Instance erred in law by holding that the evidence relied on in
that of the Commission.                                                 the contested decision does not establish to the requisite legal
                                                                        standard that the effects of the modified merger on Tetra’s
                                                                        position, principally on the aseptic carton markets, would, by
                                                                        eliminating Sidel as a potential competitor, be such as to fulfil
                                                                        the conditions of Article 2(3) of the Regulation.
2.   Error of law in requiring the Commission to assess the
     impact of ‘the illegal nature’ of certain conduct on the
     incentives of the merged entity to engage in leveraging            The Decision was based on a horizontal-type of analysis
     and to take account of purely behavioural remedies —               relating to elimination of potential competition. In the carton
     infringement of Articles 2 and 8 of the Regulation                 market, Tetra is strongly dominant, with a market share above
                                                                        80 % in aseptic carton. Competition is thus already severely
                                                                        weakened. The main threats to Tetra as regards the packaging
The Commission respectfully submits that the Court of First             of sensitive products in carton come from outside the carton
Instance erred in law and infringed, in particular, Articles 2          market and most notably from the growing market for PET,
 ---pagebreak--- 22.3.2003               EN                        Official Journal of the European Union                                              C 70/5
where Sidel, with 60 % market share for all SBM machines by               As the concentration had already been implemented, the
capacity, has a leading position. By buying Sidel, Tetra                  Commission issued a statement of objections, to which Tetra
eliminated the strongest independent competitive constraint               replied, and held a hearing, with a view to taking a decision
coming from the biggest supplier on the PET side and would                setting out measures in order to restore conditions of effective
thus strengthen its carton dominance.                                     competition pursuant to Article 8(4) of the Regulation. On
                                                                          30 January 2002, the Commission adopted such a decision
                                                                          (‘the divestiture decision’).
( 1) OJ C 68, 16.03.2002, p. 19.
( 2) Council Regulation (EEC) No 4064/89 of 21 December 1989 on
     the control of concentrations between undertakings (OJ L 395,
     30.12.1989, p. 1).
( 3) Commission Decision C (2001) 3345 final of 30 October 2001
     declaring a concentration to be incompatible with the common         Article 1 of the divestiture decision orders Tetra ‘to separate
     market, Case No COMP/M.2416 Tetra Laval/Sidel.                       itself from Sidel... in accordance with the provisions of the
                                                                          Annex to this Decision’. Point 1(5) of the Annex requires Tetra
                                                                          to divest itself of its entire shareholding in Sidel. Point 4(1) of
                                                                          the Annex specifies a deadline for completion of the divestiture.
Appeal brought on 13 January 2003 by the Commission                       By separate applications, Tetra sought the annulment of both
of the European Communities against the judgment deliv-                   the prohibition decision (case T-5/02) and the divestiture
ered on 25 October 2002 by the First Chamber of the                       decision (case T-80/02). The Court of First Instance gave
Court of First Instance of the European Communities in                    judgment in both cases on 25 October 2002.
case T-80/02 between Tetra Laval BV and the Commission
                  of the European Communities
                         (Case C-13/03 P)
                                                                          In its judgment in case T-5/02, the Court of First Instance
                                                                          annulled the prohibition decision.
                          (2003/C 70/08)
An appeal against the judgment delivered on 25 October 2002
                                                                          In its judgment in case T-80/02 (‘the contested judgment’), the
by the First Chamber of the Court of First Instance of the                Court of First Instance observed that the concentration had
European Communities in case T-80/02 ( 1) between Tetra
                                                                          indeed been implemented and that the separation of the
Laval BV and the Commission of the European Communities,                  undertakings involved in the concentration was the logical
was brought before the Court of Justice of the European                   consequence of the prohibition decision. It added that the
Communities on 13 January 2003 by the Commission of the
                                                                          adoption of a divestiture decision presupposes that the preced-
European Communities, represented by Michel Petite, Anthony               ing prohibition decision is valid. Accordingly, the annulment
Whelan and Per Hellström, acting as agents, with an address               of the prohibition decision deprives the divestiture decision of
for service in Luxembourg.
                                                                          any legal basis. The Court of First Instance concluded that,
                                                                          since it had annulled the prohibition decision by its judgment
                                                                          in case T-5/02, the action for the annulment of the divestiture
The Appellant claims that the Court should:                               decision had to be upheld, without examining the other pleas
                                                                          raised by Tetra.
—      annul the judgment of the Court of First Instance of
       25 October 2002 in case T-80/02;
—      order Tetra Laval BV to pay the Commission’s costs.
                                                                          The Commission has appealed on a number of points of law
                                                                          against the judgment of the Court of First Instance in case T-
                                                                          5/02. Should that appeal lead to the annulment of the
Pleas in law and main arguments                                           judgment of the Court of First Instance in that case, the
                                                                          judgment of the Court of First Instance in case T-80/02 will be
                                                                          based on a premise vitiated by an error of law, that is, the
The Commission adopted a decision pursuant to Article 8(3)                invalidity of the prohibition decision. Just as the annulment of
of the Merger Regulation (2) on 30 October 2001 prohibiting               the prohibition decision was the sole ground for the annulment
the notified concentration between Tetra Laval SA, a wholly               of the divestiture decision, the invalidity of the judgment
owned subsidiary of Tetra Laval BV (‘Tetra’) and Sidel SA (‘the           annulling the former would entail the annulment of the
prohibition decision’) ( 3).                                              judgment pronouncing the invalidity of the latter.