Case T-291/01: Action brought on 30 November 2001 by Dessauer Versorgungs- und Verkehrsgesellschaft mbH — DVV — Stadtwerke and four other undertakings against the Commission of the European Communities
Date: 2002-02-16
Institutions: Court of First Instance
Subjects: European Commission, Germany, State aid, action for failure to act, electrical industry, nuclear power station

16.2.2002

EN

Official Journal of the European Communities

C 44/19

the decision,

The applicant argues that, by imposing the condition in
Article 3(a) of
the defendant has applied
Article 81(3) EC incorrectly inter alia in that the condition is
not objectively necessary as the use of the collection and
sorting facilities is in no way indispensable for the activities of
competitors. Moreover,
the condition, which is dispro-
portionate, entails an encroachment on the specific subject
matter of the applicant’s trade mark and distortion of compe-
tition to the detriment of the applicant.

The applicant argues, further, that, by imposing the condition
in Article 3(a), the defendant has applied Article 86(2) EC
incorrectly, since the applicant, which is entrusted with a
service of general interest, can no longer operate its country-
wide system under economically viable conditions and make
the necessary adjustments between profitable and less profit-
able sectors.

Moreover, by imposing the condition in Article 3(b) the
defendant has applied Article 86(2) EC incorrectly. Finally, the
defendant, by seeking the commitment of 25 September 1998
(recital 72), has breached the fundamental right to freedom of
access to justice.

(1) OJ C 100, p. 4.
(2) Case T-151/01 Der Grüne Punkt — Duales System Deutschland

AG v Commission OJ 2001 C 289, p. 6.

Pleas in law and main arguments

The applicant is challenging a demand for repayment of
Community grants totalling EUR 464 329,22 made by the
Commission in the contested debit note.

The applicant and the Community concluded, within the
framework of the LIFE project (1), a contract relating to the
planned ‘Ecological revitalisation of
the Brandenburgische
Elbtalaue’: preparatory planning and Gnevsdorfer Werder sub-
project’. The Commission undertook to participate by making
a contribution of 50 % of the actual cost, but not exceeding
ECU 1,5 million. The project thus promoted, which was
designed to prepare the reinstatement of the embankment
between the municipalities of Lenzen and Wustrow, was
finished in 1998. Shortly before the end of the project, it
became apparent that it would not be possible to reinstate the
embankment as extensively as had been planned.

In February 2001 the Commission gave notice that, in its view,
the applicant, in carrying out the project, had partly deviated
from the contract and that, since the applicant had reduced
the surface area of the project, the Commission was only able
to co-finance the work done in the reduced area. By the
contested decision, the Commission called upon the applicant
to repay to it EUR 464 329,33.

Action brought on 28 November 2001 by the Land
Brandenburg against the Commission of the European
Communities

(Case T-290/01)

(2002/C 44/36)

(Language of the case: German)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 28 November 2001 by the Land
Brandenburg (Germany), represented by G. Schohe and T. Mas-
ing, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

— annul the decision contained in the Commission’s debit
note No 3240305411 of 13.9.2001 addressed to the
applicant,
LIFE94/D/
to
A211/00029/BND re Contract No B4-3200/94/730;

relating

project

No

— order the defendant to pay the costs.

it

instead,

The applicant asserts that the Community is not entitled to
demand the repayment at issue by means of a Commission
decision;
is obliged to have recourse to law
before the national courts. In addition, it maintains that the
Commission has failed to comply with its obligation to provide
a statement of reasons and has violated the applicant’s rights
of defence. Finally, the Commission has infringed the principle
of proportionality.

(1) Council Regulation (EEC) No 1973/92 of 21 May 1992 estab-
lishing a financial instrument for the environment (LIFE) (OJ 1992
L 206, p. 1), as amended by Regulation (EC) No 1404/96 of
15.7.1996 (OJ 1996 L 181, p. 1).

Action brought on 30 November 2001 by Dessauer
Versorgungs- und Verkehrsgesellschaft mbH — DVV —
Stadtwerke and four other undertakings against the
Commission of the European Communities

(Case T-291/01)

(2002/C 44/37)

(Language of the case: German)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 30 November 2001 by Dessauer

C 44/20

EN

Official Journal of the European Communities

16.2.2002

of Dessau

Versorgungs- und Verkehrsgesellschaft mbH — DVV —
Stadtwerke,
(Germany), Neubrandenburger
Stadtwerke GmbH, of Neubrandenburg (Germany), Stadtwerke
Schwäbisch Hall GmbH, of Schwäbisch Hall
(Germany),
Stadtwerke Tübingen GmbH, of Tübingen (Germany) and
Stadtwerke Uelzen GmbH, of Uelzen (Germany), represented
by D. Fouquet, lawyer.

The applicants claim that the Court should:

— declare that, by failing, within two months after being
formally called upon by letter of 29 August 2001 to act
pursuant to the second paragraph of Article 232 EC, to
examine the complaint made on the basis of Articles 87
and 88 EC and to reach a decision in the light of that
examination, the Commission has infringed Article 232
EC;

— order the Commission to pay the costs of the proceedings,
including the costs incurred by the applicants, even in the
event that, following the bringing of the action, the
Commission takes action in such a way that,
in the
opinion of the Court, the proceedings have become
nugatory.

Pleas in law and main arguments

The applicants are German public utilities producing their own
electricity. Since the introduction of competition in the
electricity market, the applicants, as energy suppliers, have
been in competition with, in particular, the 19 existing nuclear
power stations as regards the production of electricity in the
Federal Republic of Germany.

According to the applicants, the nuclear power station oper-
ators set aside reserves in their commercial and tax balance
sheets in respect of the cost of having to close down at some
future date and the disposal of irradiated fuel elements and
radioactive waste. The disposal and shutting-down costs are
allocated to the sales proceeds from continuous electricity
production. However, according to the applicants, the obli-
gation under commercial law to set aside reserves affects, at
the same time, the way in which the nuclear power station
operators are treated for tax purposes. As a result of the
German tax rules, a significant part of the tax additionally
demanded is in fact made freely available to the nuclear power
station operators by virtue of the legislation on tax relief.

The applicants assert that the exemption of reserves under
fiscal law in favour of nuclear power stations constitutes a
grant by the Federal Republic of Germany of unlawful, non-
notified aid which is incompatible with the common market.
They maintain that the Commission was obliged to open a
formal procedure against the Federal Republic of Germany

pursuant to Articles 10(1), 13(1) and 4(4) of Council Regu-
lation (EC) No 659/1999 (1). Had it done so, the Commission
would then have been constrained, under the law applicable
to grants of aid, to adopt a negative decision against the Federal
Republic of Germany on the facts as stated.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article 93 of the EC
Treaty (now Article 88 EC) (OJ 1999 L 83, p. 1).

Action brought on 28 November 2001 by Phillips-Van
Heusen Corporation against Office for the Harmonization
of the Internal Market (trade marks and designs) (OHIM)

(Case T-292/01)

(2002/C 44/38)

(Language of the case: Italian)

An action against Office for Harmonization in the Internal
Market (trade marks and designs) (OHIM) was brought before
the Court of First Instance of the European Communities on
28 November 2001 by Phillips-Van Heusen Corporation of
New York (United States of America), represented by Fabrizio
Jacobacci. The other party in proceedings before the Com-
mission was: Pash Textilvertrieb und Einzelhandel GmbH of
Munich (Germany)

The applicant claims that the Court should:

— annul Decision R 0740/2000-3 of the Third Board of
Appeal of the Office for Harmonization in the Internal
Market (Trade Marks and Designs) of 12 September 2001
notified on 28 September 2001 to the applicant;

— definitively reject the opposition brought by the defend-
ant against
registration of Community trade mark
No 161331 BASS, on behalf of Phillips-Van Heusen
Corporation, in respect of the whole of Class 25;

— order the Office for Harmonization in the Internal Market
(Trade Marks and Designs) (OHIM) to register Community
trade mark No 161331 BASS;

— order the defendant and the OHIM to pay, jointly or
severally, to the applicant the costs, expenses and fees
incurred in both the present proceedings and the oppo-
sition and appeal proceedings before the Office for
Harmonization in the Internal Market.