# C_2004300EN.01004702.xml

| 4.12.2004 | EN | Official Journal of the European Union | C 300/47 |
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4.12.2004

EN

Official Journal of the European Union

C 300/47

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Action brought on 23 September 2004 by the Federal Republic of Germany against the Commission of the European Communities

(Case T-389/04)

(2004/C 300/92)

Language of the case: German

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 23 September 2004 by the Federal Republic of Germany, represented by C.-D. Quassowski, acting as Agent, and G. Quardt, lawyer.

The applicant claims that the Court should:

| — | annul Commission Decision C(2004)2641 of 14 July 2004 on restructuring aid for MobilCom, insofar as the Commission thereby requires Germany to ensure that MobilCom and all companies in its group close their Online-Shops for the direct online sale of MobilCom mobile telephone contracts for the period of seven months, that for that period of closure of the Online-Shops the direct online sale of MobilCom mobile telephone contracts via the MobilCom Shops website is also discontinued, that MobilCom and companies in its group take no other steps to circumvent those conditions and that clients are not transferred directly via an automatic link on the relevant website to a sales partner; |
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annul Commission Decision C(2004)2641 of 14 July 2004 on restructuring aid for MobilCom, insofar as the Commission thereby requires Germany to ensure that MobilCom and all companies in its group close their Online-Shops for the direct online sale of MobilCom mobile telephone contracts for the period of seven months, that for that period of closure of the Online-Shops the direct online sale of MobilCom mobile telephone contracts via the MobilCom Shops website is also discontinued, that MobilCom and companies in its group take no other steps to circumvent those conditions and that clients are not transferred directly via an automatic link on the relevant website to a sales partner;

| — | order the Commission to pay the costs. |
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order the Commission to pay the costs.

Pleas in law and main arguments:

In support of its action, the applicant submits that Article 88(2) EC does not permit the Commission to impose on the Member State in question measures for the reduction or removal of effects of State aid which distorts competition other than measures to recover that aid. Nor are the measures provided for in Article 2 of the contested decision valid as a modification of the aid, or as conditions or requirements which could be covered by Article 7(4) of Regulation 659/1999. As a result, the Commission has therefore exceeded its margin of discretion and infringed Article 10 EC, which imposes a duty of loyal cooperation between the Member States and the EC institutions, particularly since Germany has expressly stated that it is not in a position to guarantee compliance with the conditions.

The applicant further submits that the Commission has committed grave errors of assessment in its examination of the compatibility of the aid with the common market.

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