CELEX: C2002/274/62
Language: en
Date: 2002-11-09 00:00:00
Title: Case T-279/02: Action brought on 16 September 2002 by Degussa AG against the Commission of the European Communities

9.11.2002              EN                     Official Journal of the European Communities                                      C 274/35
Pleas in law and main arguments                                          The applicant claims that the Court should:
Applicant for Com-             Calpis Co, Ltd (formerly The Cal-         —     annul the decision in the open competition COUNCIL/A/
munity trade mark:             pis Food Industry Co, Ltd)                      393 to give her a mark less than the minimum required
                                                                               for her oral test and not placing her on the reserve list;
Community trade mark           Word mark ‘CALPICO’ for goods
applied for:                   in Classes 29, 30 and 32 —                —     order the defendant to pay the costs.
                               application No 225169
Owner of the opposing          The applicant
trade mark or sign:                                                      Pleas in law and main arguments
Opposing trade mark or         German word mark ‘CALYPSO’
sign right:                    for goods in Class 32                     In support of her action, the applicant relies on a breach of the
                                                                         obligation to state the reasons on which the decision was
Decision of Opposition         Rejection of opposition                   based. The applicant argues that the defendant ought to have
Division:                                                                informed her of the marks that she was given in respect of the
                                                                         various criteria that the selection board was required to
                                                                         consider.
Decision of Board of           Dismissal of applicant’s appeal
Appeal:
                                                                         In addition, the applicant relies on the breach of the legal
Pleas in law:                  —    Likelihood of confusion              framework constituted by the notice of open competition
                                    between trade marks within           COUNCIL/A/393 and the breach of the principle of equal
                                    the meaning of Article               treatment. The applicant argues that the selection board was
                                    8(1)(b) of Regulation (EC)           bound to assess her general and professional knowledge and
                                    No 40/94 ( 1);                       qualifications in an interview in Greek. That interview was
                               —    Infringement of the principle        held in other languages.
                                    of the right to a fair hearing.
( 1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
     Community trade mark (OJ 1994 L 11, p. 1).
                                                                         Action brought on 16 September 2002 by Degussa AG
                                                                           against the Commission of the European Communities
                                                                                                  (Case T-279/02)
Action brought on 9 September 2002 by Athanacia-                                                  (2002/C 274/62)
 Nancy Pascall against the Council of the European Union
                                                                                           (Language of the case: German)
                          (Case T-277/02)
                         (2002/C 274/61)                                 An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
                                                                         European Communities on 16 September 2002 by Degussa
                   (Language of the Case: French)                        AG, Düsseldorf (Germany), represented by R. Bechthold,
                                                                         M. Karl and W. Berg, with an address for service in Luxem-
                                                                         bourg.
An action against the Council of the European Union was
brought before the Court of First Instance of the European               The applicant claims that the Court should:
Communities on 9 September 2002 by Athanacia-Nancy
Pascall, domiciled in Brussels, represented by Albert Coolen,            —     declare the Commission Decision of 2 July 2002 (Case
Jean-Noël Louis and Etienne Marchal, lawyers, with an address                  C. 373519 — Methionine) void, in so far as it concerns
for service in Luxembourg.                                                     the applicant;
 ---pagebreak--- C 274/36               EN                     Official Journal of the European Communities                                    9.11.2002
—     in the alternative, reduce the fine imposed by Article 3 of        Finally, the Commission has disregarded the presumption of
      the Decision;                                                      innocence, as it gave information to the economic press about
                                                                         the expected amount of the fine even before the decision was
                                                                         taken and that information was even published. An unbiased
—     order the Commission to pay the costs.                             decision was thus no longer possible.
Pleas in law and main arguments
                                                                         Action brought on 18 September 2002 by Norma Le-
                                                                         bensmittelfilialbetrieb GmbH & Co. KG against the Office
The applicant contests the Decision of the Commission by                 for Harmonisation in the Internal Market (Trade Marks
which a fine of EUR 118 125 000 was imposed on the                                                 and Designs)
applicant for breach of Article 81(1) EC. The Commission
claimed that the applicant and other undertakings concerned
— various producers of methionine — took part in a                                               (Case T-281/02)
continuous agreement and/or concerted practice. According
to the Commission’s findings, the applicant took part in such
arrangements from February 1986 until February 1999.                                             (2002/C 274/63)
                                                                                           (Language of the case: German)
The applicant submits that in setting the fine the Commission
did not correctly assess the duration of the infringement. The
Commission assumed that the breach lasted from 1986 until
1999. In so doing it disregarded the fact that the agreements            An action against the Office for Harmonisation in the Internal
ended in 1988, and that a fresh decision to enter into                   Market (Trade Marks and Designs) was brought before the
agreements was made only in 1992. The Commission has not                 Court of First Instance of the European Communities on
proved that there was a single continuous breach as it alleged.          18 September 2002 by Norma Lebensmittelfilialbetrieb GmbH
Furthermore, the Commission made several errors in setting               & Co KG, Nürnberg (Germany), represented by S. Rojahn and
the basic amount of the fine. In assessing the breach as a               St. Freytag, lawyers.
‘particularly serious breach’ of Article 81(1) EC it incorrectly
assessed the findings required as to the specific effect on the
relevant market. This must be viewed as an error of assessment           The applicant claims that the Court should:
and the Commission is thereby in breach of its own guidelines
on setting fines.
                                                                         —     annul the decision of the Third Board of Appeal of the
                                                                               Office for Harmonisation in the Internal Market (Trade
                                                                               Marks and Designs) of 3 July 2002 (1);
The applicant also submits that the Commission based the fine
imposed on Degussa AG on the size of the undertaking in                  —     order the defendant to pay the costs.
2001 and thereby disregarded the fact that, since the ending
of the anti-competitive agreements Degussa has been involved
in two mergers of undertakings. The Commission should have
based its decision on the fine solely on the turnover of the part
of the current undertaking which corresponds to the former               Pleas in law and main arguments
Degussa AG Frankfurt am Main. In that respect the Com-
mission infringed the principle of liability.                            Community trade mark         Word mark ‘Mehr für Ihr Geld’ —
                                                                         applied for:                 application No 1669167
                                                                         Goods or services:           Goods and services of Classes 3,
The applicant submits, moreover, that the Commission’s                                                29, 30 and 35 (inter alia, bleach-
method of setting the fine did not meet the constitutional                                            ing preparations and other sub-
requirement of certainty. In the Commission’s use of Article 15                                       stances for laundry use, meat, cof-
of Regulation No 17/62 the invalidity of this basis for                                               fee and marketing)
authorisation is clear as it gives the Commission an unlimited
authority to impose fines, which is not consistent with the              Decision        contested    Refusal of registration by the
principles concerning the certainty of legal consequences of             before the Board of          examiner
unlawful acts.                                                           Appeal: