CELEX: C2002/169/60
Language: en
Date: 2002-07-13 00:00:00
Title: Case T-107/02: Action brought on 5 April 2002 by BetzDearborn, Inc. against the Office for Harmonisation in the Internal Market

13.7.2002               EN                        Official Journal of the European Communities                                      C 169/33
2.    That suspension is subject to the following conditions: first, the     The applicant claims that the conduct of the Parliament is not
      applicant shall lodge at the Registry of the Court of First            covered by the legislation promulgated and that it has been
      Instance and at the Commission, by 5 August 2002, an                   prompted by considerations which are not germane to the
      interim report on its financial situation to 1 July 2002; second,      matter. The Parliament found in 1998 that the applicant had a
      the applicant shall repay to the BvS a first instalment of the         residence in Germany, and the applicant sent, together with
      contested aid in the sum of 256 000 euros by 31 December               the annual declaration, a confirmation of registration issued
      2002 and shall lodge at the Registry of the Court of First             by the local authority for his place of residence. He claims to
      Instance and at the Commission, within one week of making              have proved to the administration that he has only one
      the payment, written proof of the said part repayment of the           German residence and a corresponding centre of vital interests,
      contested aid; third, the applicant shall lodge at the Registry of     and that there is thus no valid reason entitling the adminis-
      the Court of First Instance and at the Commission, by                  tration to demand further proof. The administrative practice
      31 January 2003, a report on its financial situation to                of the Parliament is neither lawful nor reasonable; moreover,
      31 December 2002.                                                      it does not accord with the duties of mutual cooperation.
3.    Costs are reserved.
                                                                             Action brought on 5 April 2002 by BetzDearborn, Inc.
                                                                             against the Office for Harmonisation in the Internal
                                                                                                         Market
Action brought on 18 March 2002 by Wolf-Dieter Graf
Yorck von Wartenburg against the European Parliament
    and the Commission of the European Communities                                                   (Case T-107/02)
                           (Case T-82/02)                                                            (2002/C 169/60)
                          (2002/C 169/59)                                                      (Language of the case: English)
                   (Language of the case: German)
                                                                             An action against the Office for Harmonisation in the Internal
                                                                             Market was brought before the Court of First Instance of the
                                                                             European Communities on 5 April 2002 by BetzDearborn,
An action against the European Parliament and the Com-                       Inc., represented by Mr Geert Glas of Allen & Overy, Brussels
mission of the European Communities was brought before the                   (Belgium).
Court of First Instance of the European Communities on
18 March 2002 by Wolf-Dieter Graf Yorck von Wartenburg,
of Wittibreut (Germany), represented by H.-H. Heyland, lawyer,               A further party to the proceedings before the Board of appeal
with an address for service in Luxembourg.                                   was Atofina Chemicals, Inc.
The applicant claims that the Court should:                                  The applicant claims that the Court should:
—     by way of modification to the European Parliament’s                    —     annul the Decision of the First Board of Appeal of 17
      decision of 28 May 2001, order the appointing authority                      January 2002 in case R 1003/2000-1 to the extent that
      to apply to the applicant’s emoluments as a former                           it annuls the Decision nr 2004/2000 of the Opposition
      servant of the Communities, with effect from December                        Division of 7 September 2000; remit the case to the
      2000, the weighting for the Federal Republic of Germany,                     Opposition Division for further prosecution; order each
      to pay over the amounts not paid since then and to make                      party to bear their own costs incurred in connection with
      corresponding payments in future for as long as the                          the appeal;
      applicant maintains his residence in Germany.
                                                                             —     order the Office to pay all costs.
Pleas in law and main arguments
                                                                             Pleas in law and main arguments
The applicant, a former member of the temporary staff of the                 Applicant for the Com-        BetzDearborn, Inc.
European Parliament who has been retired since 1998, is                      munity trade mark:
contesting the Parliament’s decision not to apply any weighting
to the applicant’s retirement pension since 1 December 2001                  The Community trade           The word mark ‘BIOMATE’ for
in the absence of proof that he actually resides in Germany.                 mark concerned:               certain goods in class 1
 ---pagebreak--- C 169/34              EN                      Official Journal of the European Communities                                      13.7.2002
Proprietor of the right to   Elf Atochem North America, Inc.             The applicant claims that the Court should:
the trade mark or sign       now called Atofina Chemicals Inc.
asserted by way of oppo-
sition in the opposition                                                 —     annul or, alternatively, substantially reduce the fine
proceedings:                                                                   imposed on the applicant pursuant to Commission
                                                                               Decision C(2001)4573 final corr. of 20 December 2001
                                                                               relating to a proceeding pursuant to Article 81 of the EC
Trade mark or sign           The national and international                    Treaty and Article 53 of the EEA Agreement (Case COMP/
asserted by way of oppo-     figurative marks ‘Biomet’ and the                 E-1/36.212 — Carbonless paper);
sition in the opposition     national word mark ‘Biomet’ for
proceedings:                 certain goods in classes 1 and 5
                                                                         —     order the Commission to pay the applicant’s legal and
                                                                               other costs and expenses in relation to this matter.
Decision of the Oppo-        Rejection of the opposition of
sition Division:             Atofina Chemicals Inc.
Decision of the Board of     Partial annulment of the Oppo-
Appeal:                      sition Division’s decision.                 Pleas in law and main arguments
Grounds of claim:            Violation of Article 17(2) of Com-
                             mission       Regulation       2868/        In the contested Decision, the Commission found that the
                             95 (1)since a translation into the          applicant and ten other manufacturers of carbonless paper had
                             language of the procedure of the            infringed Article 81(1) of the EC Treaty and Article 53(1) of
                             evidence submitted was not filed            the EEA Agreement by participating in a complex of agree-
                             in due time.                                ments and concerted practices by which they fixed price
                                                                         increases, allocated sales quotas and fixed market shares and
                                                                         set up machinery to monitor the implementation of the
                                                                         restrictive agreements.
(1) Commission Regulation (EC) No 2868/95 of 13 December
    1995 implementing Council Regulation (EC) No 40/94 on the
    Community trade mark (OJ L 303 of 15.12.1995, p. 1).                 The applicant submits that the Commission erred in respect of
                                                                         each of the stages of its calculation of the applicant’s fine:
                                                                         —     it imposed an amount for ‘gravity’ (EUR 70 million) that
                                                                               was disproportionately high;
                                                                         —     it increased this amount by 100 % for ‘deterrence’ for no
                                                                               good reason;
                                                                         —     it imposed a further increase of 50 % for ‘leadership’
Action brought on 16 April 2002 by Arjo Wiggins                                which was entirely disproportionate to the role played by
Appleton Limited against the Commission of the Euro-                           the applicant; and
                      pean Communities
                                                                         —     it granted an insufficient reduction for cooperation.
                        (Case T-118/02)
                                                                         In addition, the applicant alleges that the Commission failed
                        (2002/C 169/61)                                  to take account of the economic difficulties of the carbonless
                                                                         paper market as an attenuating circumstance to reduce the
                                                                         level of the fine; it breached the applicant’s rights of defence;
                  (Language of the case: English)                        and it made a series of mistakes of a kind that it ought not to
                                                                         have made in a decision imposing a EUR 185 million fine.
                                                                         The applicant submits that the combination of these errors
An action against the Commission of the European Communi-                resulted in almost 60 % of the total of the fines handed down
ties was brought before the Court of First Instance of the               being imposed on the applicant alone, which is clearly out of
European Communities on 16 April 2002 by Arjo Wiggins                    proportion to the applicant’s market share.
Appleton Limited, represented by Mr François Brunet, Mr John
Temple Lang and Mr Jacob Grierson of Cleary, Gottlieb, Steen
& Hamilton, Paris (France).