CELEX: C2002/144/112
Language: en
Date: 2002-06-15 00:00:00
Title: Case T-114/02: Action brought on 15 April 2002 by BaByliss SA against the Commission of the European Communities

15.6.2002              EN                   Official Journal of the European Communities                                    C 144/57
Pleas in law and main arguments                                        Fourthly, the applicant considers that the Commission erred
                                                                       in law by failing to examine the extent to which the derisory
                                                                       sum paid and the financial aid provided by the French State
                                                                       was likely to strengthen even further SEB’s position on the
                                                                       relevant markets.
SEB and Moulinex are active in the design, manufacture and
sale of domestic electric appliances worldwide. A proposed
merger of the two companies was notified to the Commission.
The applicant in this case informed the Commission of its
reservations in regard to the merger. The Commission none
the less declared the transaction compatible with the common
market and with the EEA Agreement, subject to compliance
with the undertakings given. The applicant is challenging that
decision. In support of its application the applicant relies first
of all on an infringement of essential procedural requirements         Action brought on 15 April 2002 by BaByliss SA against
in accepting the undertakings proposed by SEB late. Undertak-                 the Commission of the European Communities
ings must be submitted within three weeks from notification
of a transaction. The Commission allowed SEB to submit new
phase one undertakings five weeks after the transaction was                                    (Case T-114/02)
notified. The applicant claims that those undertakings could in
no circumstances be regarded as enhancing the original
undertakings but constituted new undertakings.                                                (2002/C 144/112)
                                                                                         (Language of the Case: French)
Secondly, the applicant claims that the Commission erred in
law in deciding to authorise the operation without carrying            An action against the Commission of the European Communi-
out an in-depth investigation. The applicant claims that the           ties was brought before the Court of First Instance of the
conditions for authorisation in phase one were not met. The            European Communities on 15 April 2002 by BaByliss SA, of
undertakings proposed did not definitively resolve any serious         Montrouge (France), represented by Jacques-Philippe Gunther,
doubts as to the compatibility of the transaction with the             lawyer.
common market, as required by the Commission Notice on
remedies.
                                                                       The applicant claims that the Court should:
                                                                       —     annul the decision adopted by the Commission on
                                                                             8 January 2002 in the case of COMP/M.2621 SEB v
                                                                             MOULINEX;
Thirdly, the applicant considers that the Commission made a
manifest error of assessment in that the undertakings imposed          —     order the Commission to pay all the costs.
on SEB are insufficient to remove the competition concerns.
The Commission therefore authorised the transaction without
any undertakings on certain markets where there were serious
competition concerns. Moreover, an undertaking to grant a
trade mark licence is not by its nature sufficient to resolve the
competition concerns that the transaction raises. The period           Pleas in law and main arguments
for which the licence is granted is also insufficient for the
licensee to switch Moulinex’s products to its own brand in a
market characterised by strong brand loyalty. Furthermore, the
undertaking to supply the German market will have the effect           SEB and Moulinex are active in the design, manufacture and
of strengthening SEB/Moulinex’s position on that market.               sale of domestic electric appliances worldwide. A proposed
Finally, the fact that the Commission agreed to the same trade         merger of the two companies was notified to the Commission.
mark being used by different companies within the European             The applicant in this case informed the Commission of its
Union is liable to lead to coordinated behaviour by SEB/               reservations in regard to the merger. The Commission none
Moulinex and the licensees.                                            the less declared the transaction compatible with the common
 ---pagebreak--- C 144/58               EN                   Official Journal of the European Communities                                         15.6.2002
market and with the EEA Agreement, subject to compliance               was likely to strengthen even further SEB’s position on the
with the undertakings given. The applicant is challenging that         relevant markets.
decision.
                                                                       (1) Commission Notice on remedies acceptable under Council Regu-
                                                                           lation (EEC) No 4064/89 and under Commission Regulation (EC)
                                                                           No 447/98 (text with EEA relevance) (OJ 2001 C 68, p. 3).
In support of its application the applicant relies first of all
on an infringement of essential procedural requirements in
accepting the undertakings proposed by SEB late. Undertakings
must be submitted within three weeks from notification of a
transaction. The Commission allowed SEB to submit new
phase one undertakings five weeks after the transaction was            Action brought on 12 April 2002 by Avex Inc. against the
notified. The applicant claims that those undertakings could in        Office for Harmonisation in the Internal Market (Trade
no circumstances be regarded as enhancing the original                                         Marks and Designs)
undertakings but constituted new undertakings.
                                                                                                 (Case T-115/02)
                                                                                                (2002/C 144/113)
Secondly, the applicant claims that the Commission erred in                               (Language of the case: German)
law in deciding to authorise the operation without carrying
out an in-depth investigation. The applicant claims that the
conditions for authorisation in phase one were not met. The
undertakings proposed did not definitively resolve any serious         An action against the Office for Harmonisation in the Internal
doubts as to the compatibility of the transaction with the             Market (Trade Marks and Designs) was brought before the
common market, as required by the Commission Notice on                 Court of First Instance of the European Communities on
remedies (1).                                                          12 April 2002 by Avex Inc., Tokyo (Japan), represented by
                                                                       J. Hofmann, lawyer. Adolf Ahlers AG, Herford (Germany) was
                                                                       an additional party to the proceedings before the Board of
                                                                       Appeal.
                                                                       The applicant claims that the Court should:
Thirdly, the applicant considers that the Commission made a
manifest error of assessment in that the undertakings imposed          —      annul the decision of the First Board of Appeal of the
on SEB are insufficient to remove the competition concerns.                   Office for Harmonisation in the Internal Market of
The Commission therefore authorised the transaction without                   11 February 2002 (Case No R 634/2001-1) on the
any undertakings on certain markets where there were serious                  registration of the word/figurative sign ‘a’ as a Community
competition concerns. Moreover, an undertaking to grant a                     trade mark;
trade mark licence is not by its nature sufficient to resolve the
competition concerns that the transaction raises. The period           —      order the defendant to pay the costs.
for which the licence is granted is also insufficient for the
licensee to switch Moulinex’s products to its own brand in a
market characterised by strong brand loyalty. Furthermore, the
undertaking to supply the German market will have the effect           Pleas in law and main arguments
of strengthening SEB/Moulinex’s position on that market.
Finally, the fact that the Commission agreed to the same trade
mark being used by different companies within the European             Applicant seeking Com-         Avex Inc.
Union is liable to lead to coordinated behaviour by SEB/               munity trade mark:
Moulinex and the licensees.
                                                                       Community trade mark           The figurative mark ‘a’ for goods
                                                                       sought:                        in Classes 9, 16, 25, 35 and 41
                                                                                                      (inter alia, clothing, shoe-related
                                                                                                      items, shoes and boots) — appli-
                                                                                                      cation no 863142
Fourthly, the applicant considers that the Commission erred            Proprietor of mark or          Adolf Ahlers AG
in law by failing to examine the extent to which the derisory          sign right cited in the
sum paid and the financial aid provided by the French State            opposition proceedings: