CELEX: C2002/289/66
Language: en
Date: 2002-11-23 00:00:00
Title: Case T-296/02: Action brought on 27 September 2002 by Lidl Stiftung & Co. KG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

C 289/36              EN                     Official Journal of the European Communities                                    23.11.2002
Communities on 27 September 2002 by Koninklijke BAM                     The applicant also claims infringement of Article 9(3) of
NBM N.V., whose registered office is in the Hague (Nether-              Regulation No 4064/89 concerning the market for the pro-
lands), represented by E.H. Pijnacker Hordijk and G.W.H. Cor-           duction of asphalt. The Commission omitted to indicate the
stens.                                                                  specific regional markets on which there would be negative
                                                                        consequences for competition.
The applicant claims that the Court should:
                                                                        Furthermore, the applicant claims infringement of the principle
                                                                        of the right to a fair hearing and the obligation to state
1.    Annul the Commission Decision of 3 September 2002                 reasons. The Commission bases its finding concerning the
      pursuant to Article 9(3) of Regulation (EEC) No 4064/89           consequences of the concentration for the civil and utility
      in Case COMP/M.2881-BAM NMB/HBG;                                  construction sectors, on the one hand, and the earth-moving,
                                                                        hydraulic engineering and road construction sectors, on the
                                                                        other, on the results of a survey. The applicant states that it
2.    Order the Commission to pay the costs.                            was never able to inspect that information and was unable to
                                                                        comment on it.
                                                                        Finally, the applicant claims infringement of the obligation to
Plea in law and main arguments                                          state reasons with regard to the markets for the production of
                                                                        asphalt.
The applicant notified the Commission of its planned acqui-             (1 ) Council Regulation (EEC) No 4064/89 of 21 December 1989 on
sition of the Hollandsche Beton Group N.V. Both undertakings                 the control of concentrations between undertakings (OJ 1989
are active in the construction sector and in related markets.                L 395, p. 1) (corrected version published in OJ 1990 L 257,
                                                                             p. 13).
By the contested decision, the Commission, at the request of
the Netherlands Minister for economic affairs, referred the case
to the Netherlands competition authority as regards the
construction sector and the regional asphalt markets. As
regards the other activities of the applicant and of Hollandsche
Beton Group, the planned concentration was approved by a
Commission decision of the same date pursuant to
Article 6(1)(b) of Regulation No 4064/89 (1).                           Action brought on 27 September 2002 by Lidl Stiftung &
                                                                        Co. KG against the Office for Harmonisation in the
                                                                                  Internal Market (Trade Marks and Designs)
In support of its application the applicant submits, first, that
in its referral decision the Commission made a manifestly                                         (Case T-296/02)
incorrect appraisal of the facts. According to the applicant, the
Commission errs in finding that the applicant and Hollandsche
Beton Group N.V. have a joint market share of more than                                           (2002/C 289/66)
25 % on the relevant market for major works.
                                                                        (Language of the case: to be determined pursuant to Article 131(2)
                                                                        of the Rules of Procedure — Language in which the application has
The applicant also submits that the contested decision infringes
                                                                                                been drafted: German)
Article 9(3) of Regulation No 4064/89. The Commission
misappraises the effects of the concentration on the civil and
utility construction sectors, on the one hand, and the earth-
moving, hydraulic engineering and road construction sectors
on the other hand. In particular the market shares of the
                                                                        An action against the Office for Harmonisation in the Internal
applicant and of Hollandsche Beton Group for major projects
                                                                        Market (Trade Marks and Designs) was brought before the
in those sectors are much smaller than the Commission
                                                                        Court of First Instance of the European Communities on
concludes. Projects of that kind are implemented by various
                                                                        27 September 2002 by Lidl Stiftung & Co. KG, of Neckarsulm
undertakings which work together on one project. According
                                                                        (Germany), represented by Peter Gross, Rechtsanwalt.
to the applicant, the Commission erred in completely attribu-
ting to the applicant and Hollandsche Beton Group the market
shares of those groups of undertakings in which they took
part, without taking into account the other undertakings                A further party to the proceedings before the Board of Appeal
cooperating with them.                                                  was REWE-Zentral AG, of Cologne (Germany).
 ---pagebreak--- 23.11.2002             EN                      Official Journal of the European Communities                                       C 289/37
The applicant claims that the Court should:                               Action brought on 30 September 2002 by ACEA S.p.A.
                                                                            against the Commission of the European Communities
—     declare void and annul the decision adopted on 17 July
      2002 by the Third Board of Appeal of the Office for
      Harmonisation in the Internal Market, concerning appeal                                     (Case T-297/02)
      No R 0036/2002-3 relating to registration of the Com-
      munity trade mark ‘Lindenhof’ (application No 629741);
                                                                                                  (2002/C 289/67)
—     order the defendant to pay the applicant’s costs.
                                                                                             (Language of the case: Italian)
Pleas in law and main arguments
Applicant for the Com-         REWE-Zentral AG                            An action against the Commission of the European Communi-
munity trade mark:                                                        ties was brought before the Court of First Instance of the
                                                                          European Communities on 30 September 2002 by ACEA
The Community trade            the word mark ‘Lindenhof’, inter           S.p.A., represented by Andrea Giardina, Luca G. Radicati di
mark applied for:              alia for goods in Class 32 (mineral        Brozolo and Vincenzo Puca, avvocati.
                               waters and aerated waters and
                               other non-alcoholic drinks; fruit
                               drinks and fruit juices) — appli-
                               cation No 629741                           The applicant claims that the Court should:
Proprietor of the trade-       the applicant in these proceedings
                                                                          —     annul the Commission’s decision of 5 June 2002 (State
mark right opposed in
                                                                                Aid No C.27/99) in so far as it declares unlawful and
the opposition proceed-
                                                                                incompatible with the common market the three-year
ings:
                                                                                exemption from tax on profits granted by Italy to local
                                                                                public service undertakings the majority of the shares
Trade-mark            right    the German pictorial mark ‘LIND-                 in which are publicly owned within the meaning of
opposed:                       ERHOF’ for goods in Class 33                     Article 3(70) of Law No 549/1995, and loans granted on
                               (champagne-like wines)                           preferential terms pursuant to Article 9a of Decree-Law
                                                                                No 488/1986, and in so far as it requires Italy to recover
Decision of the Oppo-          partial rejection of the opposition              the aid in question from the recipients thereof, including
sition Division:                                                                the applicant (Articles 2 and 3 of the decision);
Decision of the Board of       rejection of the applicant’s appeal        —     order the Commission to pay the costs.
Appeal:
Grounds of claim:              —     likelihood of confusion
                                     within the meaning of
                                     Article 8(1)(b) of Regulation
                                     (EC) No 40/94 (1);                   Pleas in law and main arguments
                               —     the competing marks are
                                     extremely similar;
                                                                          The pleas in law and main arguments are similar to those
                               —     the goods of the trade-mark          advanced in Case T-292/02 Confederazione Nazionale dei
                                     applicant are not sufficiently       Servizi v Commission.
                                     dissimilar to those of the
                                     applicant in these proceed-
                                     ings.
                                                                          In particular, the applicant pleads that the measures at issue
                                                                          cannot constitute State aid, inasmuch as the companies
( 1) Council Regulation (EC) No 40/94 of 20 December 1993 on the          benefitting from the system in question do not operate within
     Community trade mark (OJ 1994 L 11, p. 1).                           a framework of competition. Furthermore, even if the measures
                                                                          at issue were to be regarded as State aid and were not classified
                                                                          as existing aid, they should be regarded as compatible aid
                                                                          within the meaning of Article 87(3)(c) EC.