CELEX: C2002/144/117
Language: en
Date: 2002-06-15 00:00:00
Title: Case T-126/02: Action brought on 18 April 2002 by Zanders Feinpapiere AG against Commission of the European Communities

C 144/60               EN                     Official Journal of the European Communities                                     15.6.2002
Action brought on 17 April 2002 by Papierfabrik August                   other cases in which the Commission took a crisis situation
Koehler AG against Commission of the European Com-                       into account as a mitigating circumstance. The Commission
                             munities                                    further failed to take into account, and recognise by a reduction
                                                                         of the fine, the applicant’s cooperation with the Commission
                                                                         during the procedure.
                         (Case T-125/02)
                        (2002/C 144/116)                                 Finally, the applicant submits that the Commission did not
                                                                         make the entire documentation of the investigation available
                                                                         to the applicant. The applicant’s right to a fair hearing was
                   (Language of the case: German)                        thereby infringed.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 17 April 2002 by Papierfabrik
August Koehler AG, of Oberkirch (Germany), represented by
I. Brinker, lawyer.                                                      Action brought on 18 April 2002 by Zanders Feinpapiere
                                                                           AG against Commission of the European Communities
The applicant claims that the Court should:
                                                                                                   (Case T-126/02)
—     Annul the Commission’s decision of 20 December 2001
      in Case COMP/E-1/36.212 — Carbonless paper;                                                 (2002/C 144/117)
—     In the alternative, reduce the fine imposed by Article 3 of                           (Language of the case: German)
      the decision;
—     Order the Commission to pay the applicant’s costs.
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
                                                                         European Communities on 18 April 2002 by Zanders Feinpa-
Pleas in law and main arguments                                          piere AG, of Bergisch Gladbach (Germany), represented by
                                                                         J. Burrichter and M. Wirtz, lawyers.
By the contested decision the Commission found that the
applicant and ten other undertakings had infringed                       The applicant claims that the Court should:
Article 81(1) of the EC Treaty and Article 53(1) of the EEA              — Annul Article 3 of the Commission decision of 20 Decem-
Agreement by taking part in a number of agreements and                         ber 2001 in Case COMP/E-1/36.212 — Carbonless paper,
concerted practices in the carbonless paper sector, in connec-                 in so far as it imposes a fine of EUR 29,76 million on the
tion with which they decided on concerted price increases,                     applicant;
allocated sales quotas, determined market shares and estab-
lished a system for supervision of the anti-competitive agree-           —     In the alternative, reduce the fine imposed on the
ments.                                                                         applicant by Article 3 of the decision;
                                                                         —     Order the Commission to pay the costs.
The applicant concedes that it took part in such a cartel, but
only from October 1993. It further submits that in determining
the fine the Commission did not take proper account of the
size of the undertakings concerned. In terms of economic                 Pleas in law and main arguments
capability, the applicant was hit much harder by the fine
imposed than the other undertakings fined. The Commission
thereby infringed the principle of proportionality.                      By the contested decision the Commission found that the
                                                                         applicant and ten other undertakings had infringed
                                                                         Article 81(1) of the EC Treaty and Article 53(1) of the EEA
The applicant further submits that, although the applicant was           Agreement by taking part in a number of agreements and
occasioned to take part in the cartel by threats, the Commission         concerted practices in the carbonless paper sector, in connec-
refused to regard that as a mitigating circumstance. Moreover,           tion with which they decided on concerted price increases,
the Commission did not take note of the fact that the applicant          allocated sales quotas, determined market shares and estab-
was occasioned to take part in the cartel as a result of a specific      lished a system for supervision of the anti-competitive agree-
crisis situation. Therein lay unequal treatment compared to              ments.
 ---pagebreak--- 15.6.2002              EN                    Official Journal of the European Communities                                          C 144/61
The applicant contests the fine imposed on it, and in particular        The applicant claims that the Court should:
its amount. It submits that the Commission ascertained the
facts erroneously and assessed incorrectly the facts ascertained        —     annul Decision R 0466/2000-2 of the Second Board of
by it, especially with respect to the applicant’s merely passive              Appeal of the Office of 18 February 2002;
participation in the cartel. The Commission further assessed
incorrectly the non-implementation or delayed implemen-
                                                                        —     order the Office to pay the costs.
tation of the agreements. The same applies to the considerable
price falls and fluctuations during the period of the infringe-
ment and to the influence of manufacturing costs on prices.
                                                                        Pleas in law and main arguments
With respect to the gravity of the infringement, the applicant
submits inter alia that the Commission failed to take appropri-         Community trade mark            The figurative mark ‘ECA’ —
ately into account, besides the minor effects of the cartel, the        sought:                         application No 1106442
poor economic situation of the sector and the early termination
of the infringement. The Commission also failed to take into            Goods or services:              Goods and services in classes 9,
account the purely passive role played by the applicant in the                                          41 and 42
cartel and its crucial importance for bringing the infringement
to an early end. It thereby infringed the principle of pro-             Decision        contested       Examiner’s refusal to register
portionality and Article 15(2) of Regulation No 17 of the               before the Board of
Council.                                                                Appeal:
                                                                        Decision of Board of            Dismissal of appeal
The fine imposed on the applicant further discriminates against         Appeal:
it compared with much more active members of the cartel.
                                                                        Pleas in law:                   —     Incorrect application of
                                                                                                              Article 7(1)(h) of Regulation
The applicant submits, moreover, that the Commission                                                          (EC) No 40/94 (1) and Article
infringed the principle of careful and impartial investigation of                                             6 of the Paris Convention (2)
the aspects of relevance for the assessment of the fine, since it                                             because the figurative mark
failed to follow up numerous indications made by the appli-                                                   is not identical to the Euro-
cant. Finally, the decision infringes the requirement to state                                                pean emblem.
reasons under Article 253 EC.
                                                                        (1) Council Regulation (EC) No 40/94 of 20 december 1993 on the
                                                                            Community trade mark (OJ 1994 L 11, p. 1).
                                                                        (2) Paris Convention for the Protection of Industrial Property.
Action brought on 18 April 2002 by Concept-Anlagen u.
Geräte nach ‘GMP’ für Produktion u. Labor GmbH against
the Office for Harmonisation in the Internal Market
                  (Trade Marks and Designs)                             Action brought on 17 April 2002 by Papeteries Mougeot
                                                                          against the Commission of the European Communities
                         (Case T-127/02)
                                                                                                 (Case T-128/02)
                        (2002/C 144/118)
                                                                                                (2002/C 144/119)
                  (Language of the case: German)                                           (Language of the case: French)
An action against the Office for Harmonisation in the Internal          An action against the Commission of the European Communi-
Market (Trade Marks and Designs) was brought before the                 ties was brought before the Court of First Instance of the
Court of First Instance of the European Communities on                  European Communities on 17 April 2002 by Papeteries
18 April 2002 by Concept-Anlagen u. Geräte nach ‘GMP’ für               Mougeot, established in Laval-sur-Vologne France, represented
Produktion u. Labor GmbH, Heidelberg (Germany), represent-              by Guy Barsi, Julien Baumgartner and Jean-Paul Hordies,
ed by G.J. Hodapp, lawyer.                                              lawyers, with an address for service in Luxembourg.