CELEX: C2003/044/80
Language: en
Date: 2003-02-22 00:00:00
Title: Case T-398/02: Action brought on 30 December 2002 by Linea Gig S.r.l. (in liquidation) against the Commission of the European Communities

22.2.2003              EN                          Official Journal of the European Union                                             C 44/43
      no scientific evidence that the processing of food waste,            Action brought on 30 December 2002 by Linea Gig S.r.l.
      as performed in the Federal Republic of Germany under                (in liquidation) against the Commission of the European
      stricter conditions in recent years, presents a risk of                                          Communities
      contamination. The risk is, on the contrary, reduced
      because illegal disposal and use as feed is prevented and
      food and kitchen waste are subject to treatment which                                          (Case T-398/02)
      destroys pathogens to a scientifically proven degree.
      There are adequate measures of control to ensure com-
      pliance with those legal requirements and the constituents
      of animal feed are traceable. The system used in the                                            (2003/C 44/80)
      Federal Republic of Germany for the collection and
      treatment of food waste and its processing into feed thus
      already meets the objectives of the regulation and there                                 (Language of the case: Italian)
      was no need for any wider authorisation in Community
      law. The possibility of extending the duration of dero-
      gations should have been made dependent on scientific
      evidence.
                                                                           An action against the Commission of the European Communi-
                                                                           ties was brought before the Court of First Instance of the
                                                                           European Communities on 30 December 2002 by Linea Gig
2.    It is incompatible with the general principle of equality            S.r.l. (in liquidation), represented by Lucio D’Amario and
      for the inflexible time restriction placed on derogating             Bruno Lazia, Lawyers.
      provisions to treat the various systems used in the
      Member States for processing food waste, and in particu-
      lar the processing into feed of food waste adequately
      treated or not, as being the same. There is no justification         The applicant claims that the Court should:
      for that in the principle governing the regulation, which
      is the prevention of contamination. Scientific evidence
      showed clearly that the way in which food waste was                  —      annul the contested decision, in whole or in so far as it
      treated in the Federal Republic of Germany was sufficient                   concerns the applicant;
      to avoid the spread of pathogens.
                                                                           —      in the alternative, annul Article 3 of the decision in so far
                                                                                  as it imposes a fine on the applicant;
3.    The time-limit imposed for derogations is an unjustified
      encroachment on freedom of property and freedom to                   —      in the further alternative, reduce the amount of the fine
      pursue an occupation, and on freedom as to how business                     imposed on the applicant;
      is run, because the member undertakings of plaintiffs 1
      and 2 are entitled to special protection of their right to
                                                                           —      order the Commission to pay the costs;
      rely on being able to pursue their activities and continue
      to use their facilities — most of which have been only
      recently modernised. Their facilities and their activities           —      order the Commission to reimburse the whole of the
      have been brought into compliance with stringent legal                      costs incurred by the applicant in the administrative
      requirements which are based on scientific evidence. They                   proceedings.
      must therefore be able to rely on being able to continue
      to pursue their activities and use their facilities as long as
      they keep to those stricter requirements and no new
      scientific evidence is available. In addition, the regulation’s
      provisions take no account of the fact that as a rule it is
      not possible for the food waste processors concerned to              Pleas in law and main arguments
      alter the use of their facilities and business premisses.
                                                                           The present action is directed against the Decision of 30 Octo-
                                                                           ber 2002 COMP/35.587 PO Video Games, COMP/35.706 PO
                                                                           Nintendo Distribution and COMP/36.321 Omega-Nintendo
( 1) OJ 2002 L 273, p. 1.                                                  doc. C(2000) 4072 final, wherein the Commission found that
                                                                           the applicant had infringed Article 81(1) EC and Article 53(1)
                                                                           of the EEA agreement as a result of its involvement, during the
                                                                           period from 1 October 1992 to the end of December 1997, in
                                                                           a series of agreements and concerted practices in the market
                                                                           for video game consols and cartridges compatible with the
                                                                           Nintendo console, the purpose and effect of the agreements
                                                                           and practices being to limit parallel exports of Nintendo
 ---pagebreak--- C 44/44                 EN                       Official Journal of the European Union                                       22.2.2003
consols and cartridges. The applicant is alleged to have                 Action brought on 31 December 2002 by Eurocermex
participated actively in a distribution agreement which imped-           S.A. against the Office for Harmonisation in the Internal
ed exports and to have provided information to assist with                                           Market
retracing the origins of parallel exports. A fine of
EUR 1,5 million was also imposed on the applicant.
                                                                                                 (Case T-399/02)
                                                                                                  (2003/C 44/81)
The applicant does not propose to dispute the material facts
upon which the decision rests. However, it submits that the                                 (Language of the case: French)
decision is vitiated, in law, in a number of respects, putting
forward the following pleas:
                                                                         An action against the Office for Harmonisation in the Internal
—     Incorrect application of Article 81 EC in so far as concerns       Market was brought before the Court of First Instance of the
      the first distribution agreement concluded between Linea           European Communities on 31 December 2002 by Eurocermex
      Gig S.r.l. Nintendo Corporation Ltd. and error in finding          S.A., established in Evere, Belgium, represented by André
      the applicant responsible for the anti-competitive conduct         Bertrand, lawyer.
      attributed to the parties involved.
                                                                         The applicant claims that the Court should:
—     Inconsistency within the decision and infringement of
      Article 253 EC. It is submitted in this regard that, despite
                                                                         —     annul the decision by which the examiner found that the
      the fact that relations and dealings between Nintendo and
                                                                               three-dimensional trade mark at issue was not such as to
      its retail and wholesale customers and relations and
                                                                               constitute a valid trade mark for ‘beers, mineral and
      dealings between John Menzies and its customers were
                                                                               aerated waters and fruit juices’, ‘restaurants, bars and
      identical to relations and dealings between Nintendo and
                                                                               snack bars’;
      its authorised distributors, the Commission decided to
      assess them in different fashions and alleged involvement
      in the supposed agreements and concerted practices only            —     send the case back to the examiner for prosecution;
      against Nintendo and its national distributors.
                                                                         —     order the Office to pay the costs.
—     Failure to assess the economic context in which the
      supposed agreements and/or concerted practices
      occurred. The applicant says that the Commission failed
      properly to define the relevant markets, failed to assess          Pleas in law and main arguments:
      Nintendo’s position in the relevant markets identified —
      instead merely evaluating its market shares in certain
                                                                         The trade mark in ques-       three-dimensional mark rep-
      Member States — and failed to assess Nintendo’s market
                                                                         tion:                         resenting a ‘long neck’ bottle on
      position in 1990, the year in which the distribution
                                                                                                       the neck of which a piece of
      agreements were concluded, or at all during the period
                                                                                                       lemon has been plugged, claiming
      1992 to 1997, instead arbitrarily choosing certain other
                                                                                                       the colours yellow and green.
      years.
                                                                         Goods or services con-        goods in Classes 16, 25, 32
                                                                         cerned:                       and 42.
—     Infringement of Article 15(2) of Regulation EEC No 17/
      62 and breach of the principles of equality and pro-               Decision        contested     25 and refusal as regards Class-
      portionality in the Commission’s assessment of the                 before grant of regis-        es 32 and 42.
      intention behind the applicant’s conduct and its fixing of         tration as regards Class-
      the amount of the fine, in that it set the fine higher than        es 16 and the Board of
      the maximum permissible sum, selected the wrong                    Appeal:
      basic amount and failed to take account of mitigating
      circumstances.
                                                                         Grounds pleaded:              Infringement of Article 7(1)(b)
                                                                                                       and (3) of Regulation (EC) No 40/
                                                                                                       94.