Case T-266/02: Action brought on 4 September 2002 by Deutsche Post AG against the Commission of the European Communities
Date: 2002-11-09
Institutions: Court of First Instance
Subjects: Germany, State aid, action for annulment (EU), financial loss, reduced price, restriction on competition

C 274/32

EN

Official Journal of the European Communities

9.11.2002

The applicant contends in addition that the infringement in
the present case did not appreciably affect trade between
Member States. Many of the Bankenrunden had no international
connection. Others could at any rate have no appreciable effect
on trade between States. Even if the infringement were to have
affected trade between States appreciably, there is in any
event no fault on the applicant’s part. In accordance with
Article 15(2) of Regulation No 17/62 it was therefore not
possible to fine the applicant.

Furthermore, in determining the applicant’s fine the defendant
made two errors of calculation with serious consequences.
Also, the seriousness of the infringement and the existence of
mitigating grounds are misappraised in the decision and no
regard was had to the applicant’s extensive cooperation.
Finally, the decision violates the prohibition on retroactivity in
Article 7 of the European Convention on Human Rights,
because the fine was determined on the basis of a framework
for fines which, as a result of two amendments to the
defendant’s decision-making practice, was not introduced until
the infringement had come to an end.

Action brought on 3 September 2002 by Mr Jan Pflugradt
against the European Central Bank

(Case T-265/02)

(2002/C 274/56)

(Language of the case: German)

An action against the European Central Bank was brought
before the Court of First Instance of the European Communities
on 3 September 2002 by Mr Jan Pflugradt, Frankfurt am Main
(Germany), represented by N. Pflüger, lawyer.

The applicant claims that the Court should:

— annul the formal warning given by the letter of 28 Febru-

ary 2002;

— order the defendant to pay the costs.

Pleas in law and main arguments

The case has the same basis as Case T-83/02 (Pflugradt v
ECB) (1), and the pleas in law and arguments correspond to
those which were put forward in that case.

( 1) OJ C 118, 18.5.2002, p. 30.

Action brought on 4 September 2002 by Deutsche Post
AG against the Commission of the European Communi-
ties

(Case T-266/02)

(2002/C 274/57)

(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 4 September 2002 by Deutsche
Post AG, Bonn (Germany), represented by J. Sedemund and
T. Lübbig, with an address for service in Luxembourg.

The applicant claims that the Court should:

— declare the Commission Decision of 19 June 2002 on

State aid No 61/99 (ex No 153/96) void;

— order the Commission to pay the costs.

Pleas in law and main arguments

The subject of the contested decision is the below-cost selling
of parcel services for business clients, compensating for which
gives rise to cross-subsidisation which is contrary to the law
on aid. In its decision the Commission found that the State aid
of EUR 572 million, which Germany granted to the applicant,
was incompatible with the common market. It found that
State compensation for the net additional costs of a rebate
policy which reduces the costs normally incurred in providing
door to door parcel services which are open to competition
favoured the undertaking within the meaning of Article 87(1)
EC.

The applicant contests that decision and points out that the
same below-cost selling was the subject of the Commission
Decision of 20 March 2000 (1) adopted on the basis of
Article 82 EC and that the two decisions came to very different
conclusions regarding the duration, the amount and the source
of financing of the alleged below-cost selling. The applicant
submits that the below-cost selling alleged in the Decision is
based on a miscalculation.

9.11.2002

EN

Official Journal of the European Communities

C 274/33

The applicant also argues that the Commission’s assertion that
the below-cost selling complained of arose as a result of an
aggressive rebate policy and that there is thus no causal link
between it and the applicant’s public service obligations is not
based on any evidence and is clearly inaccurate. Further, the
Commission has exceeded its powers in the area of services in
the general economic interest, as, according to the case-law, it
has no authority to decide on the level of costs or the efficiency
of the postal service provider.

The applicant submits that the Commission has misapplied
Article 87 and infringed the case-law on findings regarding aid
to undertakings providing services in the general economic
interest. The Commission has furnished no evidence that the
decision on cross-subsidisation in favour of the business client
parcel service can be attributed to State-run bodies of the
Federal Republic of Germany. Moreover the Commission has
disregarded the fact that a purely internal offsetting of losses
within an undertaking does not constitute aid, but is merely
covered by Article 82. It has also disregarded the fact that the
financing of temporary below-cost selling was an economically
sound decision.

Finally,
infringed the principle of the right to a fair hearing.

the applicant submits that

the Commission has

( 1) Commission Decision 2001/354/EC of 20 March 2001 relating
to a proceeding under Article 82 of the EC Treaty (Case COMP/
35.141 Deutsche Post AG) (OJ 2001 L 125, p. 27).

The applicant claims that the Court should:

— annul the decision of the Third Board of Appeal of
26 June 2002 in the appeal procedure R 206/2002-3;

— order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark Word mark ‘bestpartner’ — appli-
applied for:

cation No 2 268 134

Goods or services:

Services in Classes 36, 38 and
42 (inter alia, insurance, Internet
services and data processing for
others)

Decision
Board of Appeal:

before

the

Refusal of
examiner

registration by the

Decision of the Board of
Appeal:

Dismissal of appeal

Pleas in law:

— No grounds for refusal under
Article 7(1)(b) and (c) of
Regulation (EC) No 40/
94 (1);

— No need to keep free.

(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 28 August 2002 by MLP Finanz-
dienstleistungen AG against the Office for Harmonisation
in the Internal Market (Trade Marks and Designs)

Action brought on 2 September 2002 by Österreichische
Volksbanken-Aktiengesellschaft and Niederösterreichi-
sche Landesbank-Hypothekenbank AG against the Com-
mission of the European Communities

(Case T-270/02)

(2002/C 274/58)

(Language of the case: German)

(Case T-271/02)

(2002/C 274/59)

(Language of the Case: German)

An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on
28 August 2002 by MLP Finanzdienstleistungen AG, Heidel-
berg (Germany), represented by W. Göpfert, lawyer.

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 2 September 2002 by Österreichi-
sche Volksbanken-Aktiengesellschaft and Niederösterreichi-
sche Landesbank-Hypothekenbank AG, established in Vienna
and St. Pölten (Austria), represented by A. Ablasser, R. Roniger
and R. Bierwagen, Lawyers.