CELEX: C2003/070/44
Language: en
Date: 2003-03-22 00:00:00
Title: Case T-13/03: Action brought on 16 January 2003 by Nintendo Co., Ltd. and Nintendo of Europe GmbH against the Commission of the European Communities

22.3.2003              EN                          Official Journal of the European Union                                          C 70/27
Action brought on 15 January 2003 by Mrs Elizabeth                         —     Violation of the principle of proportionality as to the
           Afari against the European Central Bank                               penalty.
                                                                           —     Violation of the Council Directive 2000/43 of 29 June
                         (Case T-11/03)
                                                                                 2000 implementing the principle of equal treament
                                                                                 between persons irrespective of racial and ethnic
                         (2003/C 70/43)                                          origin (1).
                   (Language of the case: English)                         (1 ) Official Journal L 180, of 19.7.2000, p. 22.
An action against the European Central Bank was brought
before the Court of First Instance of the European Communities
on 15 January 2003 by Mrs Elizabeth Afari, Frankfurt,
Germany, represented by Mr Georges Vandersanden and                        Action brought on 16 January 2003 by Nintendo Co., Ltd.
Mr Laure Levi, Lawyers.                                                    and Nintendo of Europe GmbH against the Commission
                                                                                              of the European Communities
The applicant claims that the Court should:
                                                                                                       (Case T-13/03)
—     annul the disciplinary decision of the ECB of 5 November
      2002 imposing on the Appellant a written reprimand;                                             (2003/C 70/44)
—     order that the ECB pays 1 euro as compensation for the                                    (Language of the case: English)
      moral predudice;
—     order that the ECB pays the costs.
                                                                           An action against the Commission of the European Communi-
                                                                           ties was brought before the Court of First Instance of the
                                                                           European Communities on 16 January 2003 by Nintendo
                                                                           Co., Ltd., Kyoto, Japan and Nintendo of Europe GmbH,
Pleas in law and main arguments
                                                                           Großostheim, Germany, represented by Mr Ian Forrester, QC,
                                                                           Mr John Pheasant, Solicitor, Mr Mark Powell, Solicitor,
The Appellant in the present case challenges the decision of               Ms Ciara Kennedy-Loest, Solicitor and Mr James Killick,
the defendant’s Administration imposing on her a disciplinary              Barrister.
measure consisting of a written reprimand. The main charges
against her were that she made allegations of racism and                   The applicant claims that the Court should:
accused members of the management of the ECB of encourag-
ing xenophobia.                                                            —     annul Article 3 of the decision to the extent that it
                                                                                 imposes an unlawfully large fine on Nintendo;
She complains that at the beginning of this disciplinary                   —     set a lower fine (if any) in such amount as may appear
procedure there was a difficult relationship with a colleague                    appropriate to the Court in the exercise of its unlimited
who put her under very strong pressure, harassment and                           discretion pursuant to Article 229 EC;
discriminated against her in many ways. The conflict escalated
to a written complaint, as she unsuccessfully called the                   —     order the Commission to pay the applicant’s costs
attention of her management on that situation.
                                                                           —     take such other or further steps as justice may require
The Appellant invokes the following as pleas in law:
—     Violation of the duty to state reasons, of the right to good         Pleas in law and main arguments
      administration and of the obligation of due care.
                                                                           The applicants contest the decision of the Commission decision
—     Violation of the rights of defense, in so far as the burden
                                                                           C(2002) 4072 final of 30 October 2002 in Cases COMP/
      of the proof would have been illegally put on the
                                                                           35.587 PO Video games, COMP/35.706 PO Nintendo Distri-
      applicant’s shoulders and her right to be heard, as well as
                                                                           bution and COMP/36.321 Omega-Nintendo, regarding an
      the principle of impartiality, would have been ignored.
                                                                           infringement of Article 81 (1) of the EC Treaty insofar as it
                                                                           imposes an unlawfully large fine on the applicants.
—     Manifest error of appreciation in relation to the substance
      of the case. Concretely, it is submitted that the applicant
      has violated neither Article 4(1) of Conditions of Employ-           In support of their application, the applicants claim that the
      ment for Staff of the ECB, nor the ECB Code of Conduct.              Commission has infringed essential procedural requirements
 ---pagebreak--- C 70/28               EN                        Official Journal of the European Union                                           22.3.2003
such as the rights of defence, the principle of impartiality and        Action brought on 15 January 2003 by José Luis Zuazaga
fairness, the obligation to state the reasons for a decision and        Meabe against Office for Harmonisation in the Internal
the obligation to make decisions within a reasonable period.                      Market (trade marks and designs) (OHIM)
The applicants furthermore invoke violations of general prin-
ciples of law such as the principle of proportionality, equal
treatment, non bis in idem, legitimate expectations and                                           (Case T-15/03)
transparency, coherence and non-discrimination.
                                                                                                  (2003/C 70/45)
According to the applicants, the fine imposed on them was                                 (Language of the case: Spanish)
unlawful in that its amount was manifestly exorbitant and that
several steps by which this amount was calculated were
individually unlawful. The applicants submit that the setting
of the amount of the fine for gravity was made on the                   An action against Office for Harmonisation in the Internal
manifestly inappropriate basis of the applicants’ share of sales        Market (trade marks and designs) (OHIM) was brought before
of Nintendo’s products. If there were other considerations,             the Court of First Instance of the European Communities on
these were, according to the applicants, insufficiently stated.         15 January 2003 by José Luis Zuazaga Meabe, residing in
                                                                        Bilbao (Spain), represented by José Antonio Calderón Chavero.
The decision then applied an increase for deterrence where,             The applicant claims that the Court should:
according to the applicants, none was appropriate and in a
manner that conflicted with previous policy, was based on an            —     set aside the decision of the Second Board of Appeal of
error of law, involved double counting and infringed the rights               the OHIM of 24 October 2002 in Case R-918/2001;
of defence. The applicants also state that a multiplier of 3 for
deterrence was contrary to the principle of equal treatment,            —     uphold in its entirety the opposition submitted in pro-
without giving sufficient reasons and on the basis of an
                                                                              ceeding B 290157;
inappropriate methodology.
                                                                        —     uphold the arguments submitted by the applicant and
                                                                              allow the appropriate Opposition Division of the OHIM
The applicants furthermore submit that the decision imposed                   to refuse to register the trade mark in question; and
an increase on the fine of 10 % for each full year of
the infringement although the infringement was not of a                 —     order the defendant to pay the costs.
continuous intensity. According to the applicants, the increase
to the fine for the first full year of the infringement is also
contrary to the Commission’s guidelines.
                                                                        Pleas in law and main arguments
With regard to an increase of 75 % to the fine for aggravating          Applicant for the Com-         BANCO BILBAO              VIZCAYA
circumstances, the applicants submit that this is based on              munity trade mark:             ARGENTARIA S.A.
manifest errors of assessment of the applicants’ situation and
behaviour and is contrary to the Commission’s previous policy           The Community trade            ‘BLUE’        —          Application
and practice.                                                           mark concerned:                No 1345974, for goods and ser-
                                                                                                       vices in Classes 9, 36 and 38
                                                                        Proprietor of the right to     The applicant
The applicants finally submit that the granting of a reduction          the trade mark or sign
of 25 % for attenuating circumstances did not give proper               asserted by way of oppo-
regard to the criteria specified in the Leniency Notice and the         sition in the opposition
Commission’s previous policy and practice thereunder. It                proceedings:
was also not consistent with the treatment given to other
undertakings in this case and did not take proper account of            Trade mark or sign             Spanish word mark BILBAO
the behaviour of the applicants who had voluntarily                     asserted by way of oppo-       BLUE for services in Class 36
approached the Commission to inform it of the infringing                sition in the opposition
conduct. The altered assessment of the applicants’ cooperation          proceedings:
during the administrative procedure, also infringed, according
to the applicants, on its rights of defence.                            Decision of the Oppo-          Partial refusal of the application
                                                                        sition Division:               in respect of certain services in
                                                                                                       Class 36 (Insurance services;
                                                                                                       financial affairs; monetary affairs
                                                                                                       and real estate affairs)