Case T-358/02: Action brought on 5 December 2002 by Deutsche Post AG and DHL International S.r.l. against the Commission of the European Communities
Date: 2003-02-22
Institutions: Court of First Instance
Subjects: European Commission, General Court (EU), State aid, postal service, restriction on competition

C 44/32

EN

Official Journal of the European Union

22.2.2003

question to be considered and that question must relate to the
quality, safety or efficacy of the product. The applicant claims
that these conditions were not satisfied.

— order the defendant to pay the costs.

The applicant furthermore claims that the contested decision
infringed essential procedural requirements. According to the
applicant, the procedure breached the applicant’s rights of
defence and its right to be heard. The applicant was not given
the opportunity to comment on the key amendments to the
Capoten Summary of Product Characteristics. The procedure
also infringed the timetable provided for in Article 32 of
Directive 12001/83 and in the Commission’s Notice to
Applicants (1998 version).

invokes also the infringement of rules of
The applicant
Community law, like the principle of equal treatment, the duty
to give reasons, the principle of legitimate expectations and
the principle of proportionality.

Finally, the applicant claims that the contested decision is
vitiated by manifest errors of assessment.

( 1) Council Directive 65/65/EEC of 26 January 1965 on the approxi-
mation of provisions laid down by Law, Regulation or Adminis-
trative Action relating to proprietary medicinal products (OJ
1965, p. 369).

( 2) Directive 2001/83/EC of the European Parliament and of the
Council of 6 November 2001 on the Community code relating to
medicinal products for human use (OJ L 311, p. 67).

Action brought on 5 December 2002 by Deutsche Post
AG and DHL International S.r.l. against the Commission
of the European Communities

(Case T-358/02)

(2003/C 44/62)

(Language of the Case: German)

Pleas in law and main arguments

In the applicants’ submission, it is apparent from the contested
decision that Poste Italiane SpA was continuously in deficit in
the postal services sector from 1994 to 1999 and that it
received State resources which served to offset the deficits. In
Article 2 of the decision, the Commission decided that that
State subsidy to Poste Italiane SpA did not constitute State aid
under Article 87(1) EC.

The applicants submit that, so far as concerns the offsetting of
losses of those postal services which, although forming part of
the universal service, have been opened up to competition, the
decision is incompatible with Article 87(1) EC as interpreted
in the Commission decision of 19 June 2002 (2). By that
decision the Commission established that the use of State
resources to offset losses recorded by a postal undertaking in
the sector of postal services that form part of the universal
are opened up to competition infringes
service but
Article 87(1) of the Treaty as a cross-subsidy not capable of
being approved where the losses are caused by rates of charges
which do not cover costs and which the postal undertaking is
not required to apply by a State measure.

the decision is all

The applicants contend that
the less
compatible with Article 87(1) EC in so far as it relates to loss-
making postal services which do not form part of the universal
service and have been opened up to competition for a long
time. Since the Italian postal operator has been recording only
losses for 50 years and those losses can therefore only have
been covered by State resources, the Commission should not
have ‘neglected’ the offsetting in respect of those postal services
from State resources but would have been obliged in that
respect too to examine whether there was a cross-subsidy
incompatible with Article 87(1) EC.

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 5 December 2002 by Deutsche
Post AG, established in Bonn (Germany), and DHL Inter-
national S.r.l., established in Rozzano (Italy), represented by
J. Sedemund and T. Lübbig, lawyers.

The applicants further submit that no reason is stated as to
why the Commission in the contested decision, in contrast to
its decision of 19 June 2002, recognised the cross-subsidy as
involving a net extra cost which could be offset in the ‘general
economic interest’. At the same time, therefore, there is an
infringement of the duty to state reasons under Article 253
EC.

The applicants claim that the Court should:

— annul Commission Decision 2002/782/EC of 12 March
2002 on the aid granted by Italy to Poste Italiane SpA (1);

Finally,
the decision infringes the general prohibition of
discrimination under Article 12 EC, since the Commission has

22.2.2003

EN

Official Journal of the European Union

C 44/33

accorded the Italian postal operator preferential treatment vis-
à-vis the applicants, which are in competition with it in the
very sector of postal services which have been opened up to
competition.

( 1) OJ L 282, 19.10.2002, p. 29.
( 2) Commission Decision on measures implemented by the Federal
Republic of Germany for Deutsche Post AG (OJ L 247, 14.9.2002,
p. 27).

The applicant’s other pleas in law and arguments are the same
as those set out in Case T-351/02.

Action brought on 5 December 2002 by Muswellbrook
the Office for Harmonisation in the
Limited against
Internal Market (OHIM)

Action brought on 5 December 2002 by Deutsche Bahn
AG against the Commission of the European Communi-
ties

(Case T-361/02)

(2003/C 44/63)

(Language of the case: German)

(Case T-362/02)

(2003/C 44/64)

(Language of the case: Spanish)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 5 December 2002 by Deutsche
Bahn AG, Berlin, Germany, represented by M. Schütte, lawyer,
with an address for service in Luxembourg.

An action against the Office for Harmonisation in the Internal
Market (OHIM) was brought before the Court of First Instance
of the European Communities on 5 December 2002 by
Muswellbrook Limited, established in Dublin (Ireland), rep-
resented by J. Casulá Oliver, lawyer.

The applicant claims that the Court should:

The applicant claims that the Court should:

— find that the Commission infringed its obligations under
Article 87 and Article 88(1) EC in failing to adopt a
decision on the matters submitted to it by the applicant
in its complaint of 5 July 2002, and in any event, in
failing to initiate an investigation of State aid;

— order the Commission to pay the costs.

Pleas in law and main arguments

— declare incompatible with Regulation (EC) No 40/94 on
the Community trade mark, in particular Article 15(2)(a)
and/or Article 42(2) and (3) thereof, the decision of the
First Board of Appeal of the OHIM of 30 September
2002 in case No R 16/2000-1, inasmuch as it declares
that the opponent has failed to prove genuine use in the
Community of the Spanish trade mark No 88222 to
distinguish ready-to-wear and other items of clothing in
Class 25 during the five years preceding the publication
of the application for a Community trade mark;

The action has the same origin as that in Case T-351/02
(Deutsche Bahn v Commission).

— annul that decision in its entirety;

In the present action the applicant submits that the Com-
mission infringed its obligations under Article 87 and
Article 88(1) EC because, despite having been called upon to
act in accordance with paragraphs 2 and 3 of Article 232 EC,
it failed to investigate the compatibility of Paragraph 4(1),
Head 3(a), of the German Law on the taxation on mineral oil
with the State-aid provisions of the EC Treaty and to adopt a
binding decision in that regard. No such decision can be
discerned in the Commission’s letter of 21 September 2002
and the Commission’s failure to act is not justified by objective
reasons.

— agree to vary that decision so as to declare that an
assessment of and a ruling on the merits of the opposition
to registration of Community trade mark No 278028 is
appropriate, to which end the Court’s judgment should
declare that Community trade mark No 278028 is
refused, or, in the alternative, refer the case back to the
First Board of Appeal of the OHIM;

— order the defendant and, where appropriate, the inter-
vener to pay all the costs of the proceedings and those
incurred at the administrative stages of the opposition
and appeal proceedings.