Case T-296/02: Action brought on 27 September 2002 by Lidl Stiftung & Co. KG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2002-11-23
Institutions: Court of First Instance
Subjects: European Union Intellectual Property Office, action for annulment (EU), aerated drink, mineral water, non-alcoholic beverage, sparkling wine, trade-mark law

C 289/36

EN

Official Journal of the European Communities

23.11.2002

Communities on 27 September 2002 by Koninklijke BAM
NBM N.V., whose registered office is in the Hague (Nether-
lands), represented by E.H. Pijnacker Hordijk and G.W.H. Cor-
stens.

The applicant also claims infringement of Article 9(3) of
Regulation No 4064/89 concerning the market for the pro-
duction of asphalt. The Commission omitted to indicate the
specific regional markets on which there would be negative
consequences for competition.

The applicant claims that the Court should:

1. Annul the Commission Decision of 3 September 2002
pursuant to Article 9(3) of Regulation (EEC) No 4064/89
in Case COMP/M.2881-BAM NMB/HBG;

2. Order the Commission to pay the costs.

Plea in law and main arguments

Furthermore, the applicant claims infringement of the principle
of the right to a fair hearing and the obligation to state
reasons. The Commission bases its finding concerning the
consequences of the concentration for the civil and utility
construction sectors, on the one hand, and the earth-moving,
hydraulic engineering and road construction sectors, on the
other, on the results of a survey. The applicant states that it
was never able to inspect that information and was unable to
comment on it.

Finally, the applicant claims infringement of the obligation to
state reasons with regard to the markets for the production of
asphalt.

The applicant notified the Commission of its planned acqui-
sition of the Hollandsche Beton Group N.V. Both undertakings
are active in the construction sector and in related markets.

(1) Council Regulation (EEC) No 4064/89 of 21 December 1989 on
the control of concentrations between undertakings (OJ 1989
L 395, p. 1) (corrected version published in OJ 1990 L 257,
p. 13).

By the contested decision, the Commission, at the request of
the Netherlands Minister for economic affairs, referred the case
to the Netherlands competition authority as regards the
construction sector and the regional asphalt markets. As
regards the other activities of the applicant and of Hollandsche
Beton Group, the planned concentration was approved by a
Commission decision of
to
the
Article 6(1)(b) of Regulation No 4064/89 (1).

same date pursuant

In support of its application the applicant submits, first, that
in its referral decision the Commission made a manifestly
incorrect appraisal of the facts. According to the applicant, the
Commission errs in finding that the applicant and Hollandsche
Beton Group N.V. have a joint market share of more than
25 % on the relevant market for major works.

The applicant also submits that the contested decision infringes
Article 9(3) of Regulation No 4064/89. The Commission
misappraises the effects of the concentration on the civil and
utility construction sectors, on the one hand, and the earth-
moving, hydraulic engineering and road construction sectors
on the other hand. In particular the market shares of the
applicant and of Hollandsche Beton Group for major projects
in those sectors are much smaller than the Commission
concludes. Projects of that kind are implemented by various
undertakings which work together on one project. According
to the applicant, the Commission erred in completely attribu-
ting to the applicant and Hollandsche Beton Group the market
shares of those groups of undertakings in which they took
part, without taking into account
the other undertakings
cooperating with them.

Action brought on 27 September 2002 by Lidl Stiftung &
Co. KG against the Office for Harmonisation in the
Internal Market (Trade Marks and Designs)

(Case T-296/02)

(2002/C 289/66)

(Language of the case: to be determined pursuant to Article 131(2)
of the Rules of Procedure — Language in which the application has
been drafted: 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
27 September 2002 by Lidl Stiftung & Co. KG, of Neckarsulm
(Germany), represented by Peter Gross, Rechtsanwalt.

A further party to the proceedings before the Board of Appeal
was REWE-Zentral AG, of Cologne (Germany).

23.11.2002

EN

Official Journal of the European Communities

C 289/37

The applicant claims that the Court should:

Action brought on 30 September 2002 by ACEA S.p.A.
against the Commission of the European Communities

— declare void and annul the decision adopted on 17 July
2002 by the Third Board of Appeal of the Office for
Harmonisation in the Internal Market, concerning appeal
No R 0036/2002-3 relating to registration of the Com-
munity trade mark ‘Lindenhof’ (application No 629741);

— order the defendant to pay the applicant’s costs.

Pleas in law and main arguments

Applicant for the Com-
munity trade mark:

REWE-Zentral AG

The Community trade
mark applied for:

Proprietor of the trade-
mark right opposed in
the opposition proceed-
ings:

the word mark ‘Lindenhof’, inter
alia for goods in Class 32 (mineral
waters and aerated waters and
other non-alcoholic drinks; fruit
drinks and fruit juices) — appli-
cation No 629741

the applicant in these proceedings

Trade-mark
opposed:

right

the German pictorial mark ‘LIND-
ERHOF’ for goods in Class 33
(champagne-like wines)

partial rejection of the opposition

Decision of the Oppo-
sition Division:

Decision of the Board of
Appeal:

Grounds of claim:

of

confusion
— likelihood
within
of
Article 8(1)(b) of Regulation
(EC) No 40/94 (1);

the meaning

— the competing marks are

extremely similar;

— the goods of the trade-mark
applicant are not sufficiently
dissimilar to those of the
applicant in these proceed-
ings.

( 1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).

(Case T-297/02)

(2002/C 289/67)

(Language of the case: Italian)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 30 September 2002 by ACEA
S.p.A., represented by Andrea Giardina, Luca G. Radicati di
Brozolo and Vincenzo Puca, avvocati.

The applicant claims that the Court should:

— annul the Commission’s decision of 5 June 2002 (State
Aid No C.27/99) in so far as it declares unlawful and
incompatible with the common market the three-year
exemption from tax on profits granted by Italy to local
public service undertakings the majority of the shares
in which are publicly owned within the meaning of
Article 3(70) of Law No 549/1995, and loans granted on
preferential terms pursuant to Article 9a of Decree-Law
No 488/1986, and in so far as it requires Italy to recover
the aid in question from the recipients thereof, including
the applicant (Articles 2 and 3 of the decision);

Pleas in law and main arguments

The pleas in law and main arguments are similar to those
advanced in Case T-292/02 Confederazione Nazionale dei
Servizi v Commission.

In particular, the applicant pleads that the measures at issue
cannot constitute State aid,
inasmuch as the companies
benefitting from the system in question do not operate within
a framework of competition. Furthermore, even if the measures
at issue were to be regarded as State aid and were not classified
as existing aid, they should be regarded as compatible aid
within the meaning of Article 87(3)(c) EC.

rejection of the applicant’s appeal

— order the Commission to pay the costs.