Case T-351/02: Action brought on 28 November 2002 by Deutsche Bahn AG against the Commission of the European Communities
Date: 2003-02-08
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), aviation fuel, fuel tax, infringement of EU law, restriction on competition, tax exemption

8.2.2003

EN

Official Journal of the European Union

C 31/19

The applicant claims that the Court should:

The applicant claims that the Court should:

— annul paragraph 1 of the operative part of the decision
delivered by the Second Board of Appeal of the OHIM on
17 September 2002;

— annul Commission Decision A-2661/D-1565 (2002) of

21 September 2002;

— confirm the remainder of the decision;

— order the defendant to pay the costs.

Pleas in law and main arguments

— order the Commission to pay the costs.

Quick Restaurants SA

Pleas in law and main arguments

Applicant for the Com-
munity trade mark:

The Community trade
mark concerned:

Figurative mark ‘QUICK’ — Appli-
cation No 350793,
lodged in
respect of goods and services in
Classes 29, 30, 31 and 32 (meat,
fish, coffee,
foodstuffs, pre-pre-
pared dishes, prepared drinks)

Decision of
iner:

the exam-

Registration refused

Decision of the Board of
Appeal:

Grounds of claim:

Confirmation of
the contested
decision in respect of certain
goods in Classes 29, 30 and 31
to say: pre-prepared
(that
dishes) and annulment of
the
decision in respect of the other
goods

is

Misapplication of Article 7(1)(c)
of Regulation (EC) No 40/94.
According to the applicant, the
trade mark is capable of ident-
ifying the goods concerned.

Action brought on 28 November 2002 by Deutsche Bahn
AG against the Commission of the European Communi-
ties

(Case T-351/02)

(2003/C 31/28)

(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 2002 by Deutsche
Bahn AG, Berlin, Germany, represented by M. Schütte, lawyer,
with an address for service in Luxembourg.

The action is directed against the letter in which the Com-
mission rejected the applicant’s complaint of 5 July 2002
contesting the tax exemption for aviation fuel under Para-
graph 4(1), Head 3(a), of the German Mineralölsteuergesetz
(Law on taxation of mineral oil, ‘MinöStG’) and declined to
initiate a State-aid investigation of the exemption of aviation
fuel under that provision. The applicant submits that the
Commission erred in law in its decision in concluding that the
unilateral exemption of airline undertakings from the tax on
mineral oil did not constitute aid because the exemption from
the tax was covered by Directive 92/81/EEC of 19 October
1992 (1).

It

The applicant submits that the contested decision infringes
is void because the
essential procedural requirements.
Commission did not carefully and comprehensively examine
the facts submitted to it by the applicant in its complaint.
Furthermore, the Commission infringed the obligation to state
reasons under Article 253 EC. It did not indicate in detail why
the submissions of law and of fact by the applicant in the
complaint did not suffice to show the existence of State aid. In
particular,
the Commission ought to have stated why a
directive which is based exclusively on Article 93 EC could
lead to the inapplicability of Articles 87 and 88 EC. Moreover,
the contested decision is contradictory and there is consider-
able doubt as to whether it was lawfully adopted.

The applicant also submits that Paragraph 4(1), Head 3(a),
MinöStG satisfies all the requirements for the application of
Article 87(1) EC. The exemption from the basic obligation to
pay excise duty on mineral oils is a benefit with monetary
value without appropriate counter-performance by the airline
companies and therefore a financial benefit for the purposes
of Article 87(1) EC. There is no doubt
that there is a
competitive relationship between the applicant, as operator of
high-speed trains, and airline companies with regard to the
transport of persons between cities and conurbations in
Germany and neighbouring countries, and the airline compani-
es thereby enjoy a considerable cost advantage over the
applicant as a result of the tax exemption, which leads to a
distortion of competition and affects trade between Member
States.

C 31/20

EN

Official Journal of the European Union

8.2.2003

the

that

applicant

also submits

The
application of
Article 87(1) EC is not excluded by Directive 92/81/EEC. That
directive does not create any exemption from the law on State
aid, the directive being based exclusively on Article 93 EC but
not also on Article 88(2) EC or Article 87(3)(e) EC. The
Commission’s view disregards the principles of the primacy of
the Treaty over provisions of secondary law and leads to an
incorrect application of Articles 87 and 88 EC.

( 1) Council Directive 92/81/EEC of 19 October 1992 on the harmon-
isation of the structures of excise duties on mineral oils (OJ 1992
L 316, p. 12).

Action brought on 4 December 2002 by Freistaat Sachsen
against the Commission of the European Communities

(Case T-357/02)

(2003/C 31/29)

(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 December 2002 by the Freistaat
Sachsen (Germany), represented by T. Lübbig, lawyer.

The applicant claims that the Court should:

— annul Article 2(2), Article 3 and Article 4 of Commission
Decision C(2002) 2606 of 24 September 2002 on
Germany’s intended aid rules ‘Guidelines on the pro-
motion of
small and medium-sized businesses —
Improvement of efficiency of enterprises in Sachsen’;

— order the defendant to pay the costs.

Pleas in law and main arguments

In the context of its promotion of small businesses, the
applicant grants members of the professions and small and
medium-sized enterprises with a registered office or place of
business in Sachsen, on application, subsidies by way of the
promotion of projects in order to promote the economy. This
promotion is based on the ‘Guidelines of the Sachsen State
Ministry for the Economy and Labour on the promotion of
small and medium-sized businesses — Improvement of the

efficiency of enterprises’. These guidelines were first notified
to, and approved by, the Commission in 1992. The purpose
of the notification which gave rise to the contested decision
was to acquire a renewed extension of the approval with effect
from 1 January 2001 for a five-year period until 31 December
2006.

In its application the applicant complains that the Commission
found that the four part-programmes ‘coaching’, ‘participation
in trade fairs’, ‘cooperation’ and ‘promotion of product design’
of the above guidelines were not compatible with the common
market inasmuch as they exceeded the scope and the intensity
of aid laid down in Regulation (EC) No 70/2001 (1). Moreover,
the applicant challenges the finding that the part-programme
‘cooperation’ provides for operating aid that is incompatible
with the common market and that Germany may implement
the four abovementioned part-programmes only when they
have been brought
into conformity with the contested
decision.

The applicant submits that the Commission’s findings are in
many respects incorrect both substantively and also pro-
cedurally. It claims that, the Commission, in breach of its
Communication on the accelerated clearance of aid schemes
for SMEs and of amendments of existing schemes (2), reached
its decision under the normal procedure and wrongly based its
conclusions as to the compatibility of the aid measure notified
by the applicant exclusively on Regulation (EC) No 70/2001.
The Commission ought to have based its decision on the
Community guidelines on State aid for small and medium-
sized enterprises (3) applicable at the time of the notification,
under which the notified aid measure is compatible with the
common market.

In the alternative, the applicant submits that the Commission
ought to have authorised the notified aid measure even if this
had been examined on the basis of Regulation (EC) No 70/
2001, which entered into force only after the notification.

Finally, the applicant claims that the Commission has not
adequately shown the existence of a restriction of competition.

(1) Commission Regulation (EC) No 70/2001 of 12 January 2001 on
the application of Articles 87 and 88 of the EC Treaty to State aid
to small and medium-sized enterprises (OJ 2001 L 10, p. 33).

(2) OJ 1992 C 213, p. 10.
(3) OJ 1996 C 213, p. 4.