CELEX: C2002/305/55
Language: en
Date: 2002-12-07 00:00:00
Title: Case T-304/02: Action brought on 7 October 2002 by NV Hoek Loos against the Commission of the European Communities

7.12.2002              EN                     Official Journal of the European Communities                                       C 305/25
Action brought on 4 October 2002 by Westfalen Gassen                     Furthermore, according to the applicant, the Commission has
Nederland B.V. against the Commission of the European                    failed to take account of the fact that, by virtue of the attitude
                           Communities                                   adopted it at meetings of the Vereniging van Fabrikanten van
                                                                         Industriële Gassen (Association of Manufacturers of Industrial
                                                                         Gases), smaller undertakings were excluded from further
                         (Case T-303/02)                                 involvement in the discussions concerning the concerted
                                                                         practices at issue. The applicant’s attitude was not passive; on
                                                                         the contrary, it actively opposed those practices. According to
                         (2002/C 305/54)                                 the applicant, the attitude thus adopted by it in fact had an
                                                                         effect which was beneficial to competition.
                   (Language of the case: Dutch)
                                                                         The applicant further claims that the Commission is mistaken
                                                                         as to the duration of the infringement allegedly committed by
                                                                         it.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the               Finally, the applicant claims that the fine imposed is contrary
European Communities on 4 October 2002 by Westfalen                      to the principles of proportionality and equality. According to
Gassen Nederland B.V., established at Deventer (Netherlands),            the applicant, having regard to the turnover figure at the time
represented by J.J.M. Essers, lawyer.                                    of the infringement, it has in relative terms suffered the
                                                                         heaviest penalty, and the Commission, when fixing the amount
                                                                         of the fine, proceeded on the basis of incorrect factual
                                                                         assumptions.
The applicant claims that the Court should:
(1) primarily, annul Articles 1 and 3 of the Commission’s
      decision of 24 July 2002 in case COMP/E-3/36.700 —
      Industrial and medical gases, imposing on the applicant a
      fine of EUR 0.43 million for infringement of Article 81(1)
      EC;
                                                                         Action brought on 7 October 2002 by NV Hoek Loos
(2) alternatively, annul Article 1 of that decision and substan-           against the Commission of the European Communities
      tially reduce the fine imposed by Article 3 thereof;
                                                                                                   (Case T-304/02)
(3) order the Commission to pay the costs.
                                                                                                   (2002/C 305/55)
                                                                                              (Language of the case: Dutch)
Pleas in law and main arguments
The applicant has been active on the Netherlands market since            An action against the Commission of the European Communi-
1989. It imports industrial gases from Germany from its                  ties was brought before the Court of First Instance of the
parent company, Westfalen AG, or purchases them from other               European Communities on 7 October 2002 by NV Hoek
producers.                                                               Loos, established at Schiedam (Netherlands), represented by
                                                                         J.J. Feenstra and B.F. van Harninxma thoe Slooten, lawyers.
By the contested decision, the Commission found that the
applicant had participated in concerted practices relating to            The applicant claims that the Court should:
price increases, moratoria and minimum prices in respect of
the Netherlands market.                                                  (1) primarily, annul Article 3 of the contested decision, in so
                                                                                far as it concerns the fine imposed on the applicant;
In support of its claim, the applicant states that the Com-              (2) alternatively, in the exercise of its unfettered jurisdiction
mission has produced no proof, or no sufficient proof, of any                   and applying justice in an appropriate manner, substan-
infringement by it of Article 81(1) EC. Thus, the Commission                    tially reduce the fine imposed on the applicant;
has not proved, or has not sufficiently proved, that the
applicant took part in the concerted practices.                          (3) order the Commission to pay the costs.
 ---pagebreak--- C 305/26                EN                      Official Journal of the European Communities                                       7.12.2002
Pleas in law and main arguments                                            The applicant claims that the Court should:
                                                                           —     annul Decision R 719/2000-4 of the Fourth Board of
The applicant is contesting Article 3 of the Commission’s                        Appeal of the OHIM of 12 July 2002;
decision of 24 July 2002 in case COMP/E-3/36.700 —
Industrial and medical gases, in so far as it imposes a fine on            —     order OHIM to pay the costs.
the applicant for infringement of Article 81 EC. The applicant
is contesting only the fine imposed on it, and is not challenging
the facts established or the legal assessment thereof.
                                                                           Pleas in law and main arguments
The applicant claims that the contested decision is contrary to            The Community trade           The bottle comprises a main sec-
Article 15(2) of Regulation No 17 ( 1) and Article 253 EC. Fines           mark concerned:               tion with, at its base, a recess, in
to be imposed are to be determined by reference to the                                                   the shape of a slightly truncated
seriousness of the infringement and the duration thereof.                                                cone with, in its flat section, a
According to the applicant, that rule has been applied by the                                            stylised star in relief In the lower
Commission in an inequitable and unreasonable manner. The                                                part of the main section, which is
applicant maintains that undertakings which committed the                                                nearly cylindrical from bottom to
same infringement over the same period should be required,                                               top, there is an initial series of
under the terms of the decision, to pay a much smaller fine.                                             wavy grooves and, in the top
                                                                                                         part, which is of slightly smaller
                                                                                                         diameter and bobbin-shaped,
Furthermore, according to the applicant, the Commission, in                                              there are spiralling grooves which
choosing the addressees of the decision, the turnover attribu-                                           form lozenges when seen through
table to each of those addressees and the order to be applied                                            the bottle The upper section,
to the restriction of the fine to 10 % of turnover and the                                               which is the shape of a slightly
leniency rule, adopted a decision which cannot be objectively                                            truncated cone, ends in a cylindri-
justified and which does not justify the considerable differences                                        cal neck with a blue cap — Regis-
in the amounts of the fines imposed.                                                                     tration No 922179
                                                                           Goods or service:             Water (Class 32 of the inter-
The applicant also pleads infringement of the Community                                                  national classification).
principles of equality and proportionality and of the prohib-
ition precluding arbitrariness. According to the applicant,                Decision of the Board of      Refusal of examiner to register the
undertakings involved in a similar measure have been treated               Appeal:                       mark.
in an unequal way.
                                                                           Grounds of claim:             Infringement of Article 7(1)(b)
                                                                                                         and (e) of Regulation EEC No 40/
( 1) EEC Council: Regulation No 17: First Regulation implementing                                        94.
     Articles 85 and 86 of the Treaty (OJ, English Special Edition
     1959-1962, p. 87).
                                                                           Action brought on 7 October 2002 by Altana Pharma AG
                                                                           against the Office for Harmonisation in the Internal
Action brought on 3 October 2002 by Nestlé Waters                                        Market (Trade, Marks and Designs)
France against Office for Harmonization in the Internal
          Market (Trade, Marks and Designs) (OHIM)                                                  (Case T-307/02)
                         (Case T-305/02)                                                            (2002/C 305/57)
                         (2002/C 305/56)                                   (Language of the case to be determined pursuant to Article 131(2)
                                                                           of the Rules of Procedure — language in which the application was
                                                                                                   submitted: German)
                    (Language of the case: French)
                                                                           An action against the Office for Harmonisation in the Internal
An action against Office for Harmonization in the Internal                 Market (Trade, Marks and Designs) was brought before the
Market (Trade, Marks and Designs) (OHIM) was brought before                Court of First Instance of the European Communities on
the Court of First Instance of the European Communities on                 7 October 2002 by Altana Pharma AG, Konstanz (Germany),
3 October 2002 by Nestlé Waters France, whose registered                   represented by H. Becker, lawyer. N.V. Organon, Oss (Nether-
office is in Issy-les-Moulineaux (France), represented by Alain            lands), was an additional party to the proceedings before the
Cléry.                                                                     Board of Appeal.