CELEX: C2002/274/63
Language: en
Date: 2002-11-09 00:00:00
Title: Case T-281/02: Action brought on 18 September 2002 by Norma Lebensmittelfilialbetrieb GmbH & Co. KG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

C 274/36               EN                     Official Journal of the European Communities                                    9.11.2002
—     in the alternative, reduce the fine imposed by Article 3 of        Finally, the Commission has disregarded the presumption of
      the Decision;                                                      innocence, as it gave information to the economic press about
                                                                         the expected amount of the fine even before the decision was
                                                                         taken and that information was even published. An unbiased
—     order the Commission to pay the costs.                             decision was thus no longer possible.
Pleas in law and main arguments
                                                                         Action brought on 18 September 2002 by Norma Le-
                                                                         bensmittelfilialbetrieb GmbH & Co. KG against the Office
The applicant contests the Decision of the Commission by                 for Harmonisation in the Internal Market (Trade Marks
which a fine of EUR 118 125 000 was imposed on the                                                 and Designs)
applicant for breach of Article 81(1) EC. The Commission
claimed that the applicant and other undertakings concerned
— various producers of methionine — took part in a                                               (Case T-281/02)
continuous agreement and/or concerted practice. According
to the Commission’s findings, the applicant took part in such
arrangements from February 1986 until February 1999.                                             (2002/C 274/63)
                                                                                           (Language of the case: German)
The applicant submits that in setting the fine the Commission
did not correctly assess the duration of the infringement. The
Commission assumed that the breach lasted from 1986 until
1999. In so doing it disregarded the fact that the agreements            An action against the Office for Harmonisation in the Internal
ended in 1988, and that a fresh decision to enter into                   Market (Trade Marks and Designs) was brought before the
agreements was made only in 1992. The Commission has not                 Court of First Instance of the European Communities on
proved that there was a single continuous breach as it alleged.          18 September 2002 by Norma Lebensmittelfilialbetrieb GmbH
Furthermore, the Commission made several errors in setting               & Co KG, Nürnberg (Germany), represented by S. Rojahn and
the basic amount of the fine. In assessing the breach as a               St. Freytag, lawyers.
‘particularly serious breach’ of Article 81(1) EC it incorrectly
assessed the findings required as to the specific effect on the
relevant market. This must be viewed as an error of assessment           The applicant claims that the Court should:
and the Commission is thereby in breach of its own guidelines
on setting fines.
                                                                         —     annul the decision of the Third Board of Appeal of the
                                                                               Office for Harmonisation in the Internal Market (Trade
                                                                               Marks and Designs) of 3 July 2002 (1);
The applicant also submits that the Commission based the fine
imposed on Degussa AG on the size of the undertaking in                  —     order the defendant to pay the costs.
2001 and thereby disregarded the fact that, since the ending
of the anti-competitive agreements Degussa has been involved
in two mergers of undertakings. The Commission should have
based its decision on the fine solely on the turnover of the part
of the current undertaking which corresponds to the former               Pleas in law and main arguments
Degussa AG Frankfurt am Main. In that respect the Com-
mission infringed the principle of liability.                            Community trade mark         Word mark ‘Mehr für Ihr Geld’ —
                                                                         applied for:                 application No 1669167
                                                                         Goods or services:           Goods and services of Classes 3,
The applicant submits, moreover, that the Commission’s                                                29, 30 and 35 (inter alia, bleach-
method of setting the fine did not meet the constitutional                                            ing preparations and other sub-
requirement of certainty. In the Commission’s use of Article 15                                       stances for laundry use, meat, cof-
of Regulation No 17/62 the invalidity of this basis for                                               fee and marketing)
authorisation is clear as it gives the Commission an unlimited
authority to impose fines, which is not consistent with the              Decision        contested    Refusal of registration by the
principles concerning the certainty of legal consequences of             before the Board of          examiner
unlawful acts.                                                           Appeal:
 ---pagebreak--- 9.11.2002              EN                       Official Journal of the European Communities                                       C 274/37
Decision of the Board of       Decision of the examiner set aside          Pleas in law and main arguments
Appeal:                        in so far as it applies to services in
                               Class 35. Dismissal of the remain-
                               der of the appeal.
                                                                           The applicant contests Commission Decision C(2002) 2315,
Pleas in law:                  —     Infringement of Article               of 26 June 2002.
                                     7(1)(c) of Regulation (EC)
                                     No 40/94 ( 2);
                               —     Infringement of Article
                                     7(1)(b) of Regulation (EC)            The applicant is active in the building materials sector. In
                                     No 40/94.                             1999, the applicant and Franz Haniel & Cie GmbH acquired
                                                                           from Ruhrkohle AG its shares in certain factories which were
                                                                           members of the ‘Coöperatieve verkoop en produktievereniging
                                                                           van kalkzandsteenproducenten’ (CVK), a co-operative organ-
( 1) Case R 239/2002-3.                                                    ization for Dutch calcium silicate producers. According to the
( 2) Council Regulation (EC) No 40/94 of 20 December 1993 on the           contested Decision, the applicant and Franz Haniel thereby
     Community trade mark (OJ 1994 L 11, p. 1).                            gained joint control of CVK. The Decision further states that
                                                                           the second set of commitments offered by the applicant and
                                                                           Franz Haniel are sufficient to ensure that the concentration
                                                                           would be compatible with the common market.
                                                                           In support of its application, the applicant submits that the
                                                                           Commission has infringed Article 3 of Council Regulation
                                                                           No 4064/89 (1). According to the applicant, the Commission
Action brought on 11 September 2002 by Cementbouw                          erred in concluding that the applicant and Franz Haniel have
Handel & Industrie B.V. against the Commission of the                      joint control of CVK. The applicant furthermore claims that
                     European Communities                                  the Commission did not provide sufficient evidence for this
                                                                           conclusion and failed to give reasons for it, in breach of
                                                                           Article 253 of the EC Treaty.
                          (Case T-282/02)
                         (2002/C 274/64)                                   The applicant also submits that the Commission has infringed
                                                                           Article 2 of Regulation No 4064/89. According to the
                                                                           applicant, the Commission erred in concluding that the
                   (Language of the case: English)                         transaction under which the shares in Ruhrkohle AG were
                                                                           acquired by the applicant and Franz Haniel led to a dominant
                                                                           position for CVK on the market for building materials for
                                                                           load-bearing walls in the Netherlands. Nor, the applicant
                                                                           claims, did the Commission provide sufficient evidence in
                                                                           support of this conclusion or provide a statement of its reasons
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                 for it, in breach of Article 253 of the EC Treaty.
European Communities on 11 September 2002 by
Cementbouw Handel & Industrie B.V., Amsterdam, Nether-
lands, represented by W. Knibbeler, Advocaat and
O. W. Brouwer, Advocaat.                                                   The applicant finally claims that Article 3 and 8(2) of
                                                                           Regulation 4064/89 were misapplied, and the principle of
                                                                           proportionality was breached by the Commissions failure to
                                                                           accept the first set of commitments submitted by the applicant
The applicant claims that the Court should:                                and Franz Haniel.
—      annul Article 1 of the contested Decision;
                                                                           (1 ) Council Regulation (EEC) No 4064/89 of 21 December 1989 on
—      annul Article 2 of the contested Decision;                               the control of concentrations between undertakings (OJ L 395,
                                                                                p. 1) (republished in OJ 1990, L 257, p. 13).
—      annul Article 3 of the contested Decision;
—      order the Commission to pay the costs.