CELEX: C2002/274/60
Language: en
Date: 2002-11-09 00:00:00
Title: Case T-273/02: Action brought on 6 September 2002 by Krüger GmbH & Co KG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

C 274/34                 EN                    Official Journal of the European Communities                                      9.11.2002
The applicants claim that the Court should:                               In addition, the requirement under Article 81(1) EC that trade
                                                                          between States be affected is not met. The arrangements on
                                                                          the Austrian banking market were not capable of affecting
—     annul Article 1 of Commission Decision C(2002) 2091                 trade between States, and no fault can be attributed to the
      final of 11 June 2002 in Case COMP/36.571/D-1 —                     applicants with regard to that requirement since they could
      Austrian Banks, in so far as it relates to the applicants;          assume, in particular on the basis of the legal position in
                                                                          Austria at that time and the participation of State authorities,
                                                                          that their conduct was lawful under European cartel law too.
—     annul the first sentence of Article 2 of the decision in so         In determining the gravity of the infringement, the decision
      far as it relates to the applicants;                                fails to have regard to the fact that no binding arrangements
                                                                          in the sense of a price cartel were entered into, and not a single
—     annul Article 3 of the decision in so far as it relates to the      attenuating circumstance was taken into account.
      applicants or, in the alternative, reduce the fine imposed
      on the applicants in Article 3;
                                                                          The applicants plead that a further procedural error is consti-
—     in the alternative to the first claim, annul the decision           tuted by the decisions and measures of the Commission
      allowing the FPÖ (Austrian Freedom Party) as a complain-            allowing the FPÖ (Austrian Freedom Party) as a complainant
      ant and the transmission of the statement of objections;            and transmitting the statement of objections to it.
—     order the defendant to pay the costs.
Pleas in law and main arguments
                                                                          Action brought on 6 September 2002 by Krüger GmbH
                                                                          & Co KG against the Office for Harmonisation in the
The proceeding conducted by the defendant was directed                             Internal Market (Trade Marks and Designs)
against regular meetings of banks in Austria (‘Bankenrunden’).
By the contested decision the Commission found that the
applicants — together with six other Austrian banking insti-                                        (Case T-273/02)
tutions — had infringed Article 81 EC by participating in
agreements and concerted practices concerning prices, charges
and advertising measures, designed to restrict competition on                                       (2002/C 274/60)
the Austrian banking market from 1 January 1995 until
24 June 1998. The Commission imposed fines on the banks
concerned.
                                                                          (Language of the case to be determined pursuant to Article 131(2)
                                                                          of the Rules of Procedure — language in which the application was
                                                                                                   submitted: German)
The applicants contend that the contested decision is unlawful
first of all because the finding of the facts is partly incorrect,
partly incomplete and therefore defective. The decision thus
infringes essential procedural requirements within the meaning
of the second paragraph of Article 230 EC. In addition, the               An action against the Office for Harmonisation in the Internal
decision displays numerous defects in its reasoning and                   Market (Trade Marks and Designs) was brought before the
contradictions. This concerns the choice of the persons to                Court of First Instance of the European Communities on
whom the decision was addressed, as a whole, and the question             6 September 2002 by Krüger GmbH & Co KG, Bergisch
why the applicants were chosen on the basis of the criterion              Gladbach (Germany), represented by S. v. Petersdorff-Campen,
of the size of the institutions.                                          lawyer. Calpis Co Ltd, Tokyo, Japan was an additional party to
                                                                          the proceedings before the Board of Appeal.
The applicants further contend that the decision infringes the
principle of equal treatment since they were discriminated                The applicant claims that the Court should:
against when the persons to whom the decision was to be
addressed were decided upon. They took part in the various                —      annul the decision of the First Board of Appeal of 25 June
rounds of meetings far less frequently than other banks or not                   2002, reference No R 484/2000-1;
at all, nor are they comparable with other banks as regards
size. The Commission also infringed the principle of due
process and the applicants’ rights of defence.                            —      order the Office to pay the applicant’s costs.
 ---pagebreak--- 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;