Case T-20/03: Action brought on 22 January 2003 by KAHLA/Thüringen Porzellan GmbH against the Commission of the European Communities
Date: 2003-03-22
Institutions: Court of First Instance
Subjects: European Commission, Germany, State aid, action for annulment (EU), ceramics, investment aid, job creation

22.3.2003

EN

Official Journal of the European Union

C 70/29

Decision of the Board of
Appeal:

Appeal upheld and opposition
dismissed in its entirety

Grounds of claim:

Misapplication of Article 8(1)(b)
of Regulation (EC) No 40/94 (like-
lihood of confusion and associ-
ation between the trade marks at
issue)

Action brought on 17 January 2003 by CD-Contact Data
against the Commission of the European Communities

(Case T-18/03)

(2003/C 70/46)

(Language of the case: English)

In support of its application, the applicant submits a violation
of Article 81 EC Treaty and a serious error of assessment in
fact and in law, as well as an infringement of essential
procedural requirements, such as the duty to state reasons.
According to the applicant, the Commission has not proven
to the requisite legal standard that the applicant agreed with
Nintendo to hinder parallel trade.

The applicant furthermore submits a breach of the principles
of proper administration, such as the principle of equality and
the principle of proportionality. In this respect, the applicant
also invokes a violation of the duty to state reasons. The
applicant states that the Commission needs to have regard to
the gravity and the duration of
the infringement when
establishing the fine. According to the applicant, the Com-
mission has not acted in accordance with these principles
because there is no convincing evidence that the applicant
entered into an agreement with Nintendo and, in any event,
the alleged infringements by the applicant had a much more
limited impact and shorter duration than the infringements of
Nintendo and its other distributors.

Action brought on 22 January 2003 by KAHLA/Thüringen
Porzellan GmbH against the Commission of the European
Communities

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 17 January 2003 by CD-Contact
Data, Burglengenfeld, Germany, represented by Mr J. K. de
Pree and Mr R. Wesseling, Lawyers.

The applicant claims that the Court should:

(Case T-20/03)

(2003/C 70/47)

(Language of the Case: German)

— annul the Commission’s decision of 30 October 2002 in
Cases COMP/35.587 PO Video games, COMP/35.706
PO Nintendo Distribution and COMP/36.321 Omega-
Nintendo in as far as addressed to the applicant (in
particular articles 1 and 3) in whole or in part;

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 22 January 2003 by KAHLA/
Thüringen Porzellan GmbH, having its registered office in
Kahla (Germany), represented by M. Schütte and S. Zühlke,
Rechtsanwälte.

— order the Commission to pay the costs

Pleas in law and main arguments

The applicant
is active in the fields of distributing and
republishing entertainment software. Between April and
December 1997, the applicant acted as exclusive distributor
for Nintendo products in Belgium and Luxemburg. The
Commission alleges that the applicant entered into an agree-
ment and/or restricted practice with Nintendo to restrict
parallel export.

The applicant claims that the Court should:

(1)

aside Article 1(2) of Commission Decision
Set
C(2002)4040 final of 30 October 2002 concerning State
aid provided by Germany for Kahla Porzellan GmbH and
KAHLA/Thüringen Porzellan GmbH (Proceeding C 62/
2000) in so far as that provision adversely affects the
applicant;

(2)

Set aside Article 2 in so far as it relates to the measures
referred to in point (1);

(3) Order the Commission to pay the costs of the proceed-

ings.

C 70/30

EN

Official Journal of the European Union

22.3.2003

Pleas in law and main arguments

The applicant did not receive a number of the measures listed.
The demand for repayment of aid which was not granted thus
patently infringes substantive law.

The applicant is a porcelain-manufacturing undertaking based
in Kahla, Thüringen (Thuringia). As the investor which made
the highest offer, it acquired machinery, plant and property
from the receiver responsible for administering the assets
of Kahla Porzellan GmbH.
the
Commission classified a number of measures in favour of
Kahla Porzellan GmbH and the applicant as constituting aid
and declared them to be incompatible with the Common
Market.

In its contested decision,

By its action, the applicant takes issue in particular with the
order for repayment of the investment subsidy of 2,5 million
DEM, the order for repayment of allegedly ‘de minimis’ aid
payments and that for repayment of grants made for the
job-creation measures under
implementation of
Para-
graph 249h of
the Arbeitsförderungsgesetz (Law on the
Promotion of Employment) (‘AFG’). In its action it alleges
infringement of the EC Treaty, breach of fundamental prin-
ciples of Community law and manifest errors of fact and of
appraisal.

The applicant contends that the order for repayment of
the investment subsidy and of the grants paid out under
Paragraph 249h AFG is contrary to the EC Treaty. The
investment subsidy was granted from an approved programme
and, with regard to measures under Paragraph 249h AFG, the
Commission expressly determined in 1994 that these did not
constitute aid. In both cases, therefore, the rules applicable to
existing aid applied. In its decision, however, the Commission
went beyond an examination of whether the particular con-
ditions of the programmes had been complied with and
retroactively applied more stringent conditions to those pro-
grammes than were contained in the programmes or in the
conditions of approval which the Commission had imposed.
The Commission is thereby in breach of Articles 87 EC and 88
EC and in infringement of the principle of legal certainty.

The applicant argues further that the Commission has infringed
the fundamental principle of the protection of legitimate
expectations by failing to take account of the fact that the
publication by the Commission itself in the Official Journal of
the EC of its formal approval of the programme for guarantee-
ing investment and the rules in Paragraph 249h AFG gives no
indication of the more stringent restrictions which it has
applied within the context of the contested decision. The
applicant was thus entitled to rely on the expectation that both
programmes would be applied in the form as published and
approved by the Commission. The demand for repayment,
which runs counter to this expectation, is patently unlawful.

The applicant submits further that the Commission’s findings
contain fundamental errors of fact and a number of manifest
errors of appraisal. First, there is an error of appraisal in the
classification of the applicant as an undertaking in difficulty.
The demand for repayment of the ‘de minimis’ aid payments
also contains manifest and significant errors as to the facts.

Action brought on 30 January 2003 by Antonio Aresu
against the Commission of the European Communities

(Case T-24/03)

(2003/C 70/48)

(Language of the case: Italian)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 30 January 2003 by Antonio Aresu rep-
resented by Sergio Diana, acting as Agent, with an address for
service in Luxembourg.

The applicant claims that the Court should:

— annul the following two decisions:

(a)

the express decision of the appointing authority
of 29 August 2002 recorded in the note from
Mr T. Lennon D(2002)687 of 2 September 2002,
received on 4 September 2002, announcing the
rejection of the applicant’s application for vacant
post COM/059/02 and the awarding of that post to
Mr M. Scannell;

(b)

the implied decision of the appointing authority of
17 January 2003 rejecting the complaint made by
the applicant on 17 September 2002 against that
decision.

— order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant
in this case contests the rejection of his
application for a post as head of unit in the Health and
Consumer Protection Directorate-General.

In support of his claims the applicant submits that the
contested decisions stated no grounds, in breach of the second
paragraph of Article 25 of the Staff Regulations.