Case T-180/03: Action brought on 21 May 2003 by Auna Operadores de Telecomunicaciones, S.A., Retecal Sociedad Operadora de Telecomunicaciones de Castilla y León, S.A. Euskaltel, S.A., Telecable de Asturias, S.A. (a company arising from the merger between Telecable de Avilés, S.A., Telecable de Oviedo, S.A. and Telecable de Gĳón, S.A.), R. Cable y Telecomunicaciones Galicia, S.A. and Tenaria, S.A. against Commission of the European Communities
Date: 2003-07-19
Institutions: Court of First Instance
Subjects: European Commission, Spain, action for annulment (EU), cable distribution, economic concentration, jurisdiction, mass media, merger control, pay television, telecommunications

19.7.2003

EN

Official Journal of the European Union

C 171/41

The applicant claims that the Court should:

— annul the decision adopted on 13 February 2003 by the
Fourth Board of Appeal of the Office for Harmonisation
in the Internal Market (Trade Marks and Designs) in case
R 839/2001-4;

— order the Defendant to remit the application to its
Examination Division for re-examination of Community
Trade Mark number 1864107.

Pleas in law and main arguments

The trade mark con-
cerned:

word

‘NUR-
The
SERYROOM’ — application
No 1864107

mark

Goods or service con-
cerned:

Goods in Class 16, 18, 21, 25 and
28 (e.g. books, clothes, plush toys)

Decision
before
Appeal:

contested
the Board of

Refusal of
examiner

registration by the

Decision of the Board of
Appeal:

Dismissal of the appeal

Grounds of claim:

Misapplication of Article 7(1)(c)
of Regulation (EC) No 40/94 (1).

European Communities on 21 May 2003 by Auna Operadores
de Telecomunicaciones, S.A., whose registered office is in
Barcelona (Spain) represented by Antonio Creus Carreras and
Natalia Lacalle Mangas, lawyers, Retecal Sociedad Operadora
de Telecomunicaciones de Castilla y León, S.A. whose regis-
tered office is in Boecilli, Valladolid (Spain) Euskaltel, S.A.,
whose registered office is in Zamudio, Bizkaia (Spain) Telecable
de Asturias, S.A. (a company arising from the merger between
Telecable de Avilés, S.A., Telecable de Oviedo, S.A. and
Telecable de Gijón, S.A.), whose registered office is in Oviedo
(Spain), R. Cable y Telecomunicaciones Galicia, S.A., whose
registered office is in A Coruña (Spain), and Tenaria, S.A.,
whose registered office is in Cordovilla, Navarra (Spain)
represented by José Mª Jiménez Laiglesia, lawyer.

The applicants claim that the Court should:

— annul the decisions of the Commission of 14 March
2003 in so far as the Commission took the view that the
agreement of 29 January 2003 did not give rise to a new
concentration;

— order the Commission to pay the entire costs of the

proceedings.

( 1) Council Regulation (EC) No 40/94 of 20.12.1993 on the Com-

munity trade mark (OJ L 11, p. 1).

Pleas in law and main arguments

Action brought on 21 May 2003 by Auna Operadores de
Telecomunicaciones, S.A., Retecal Sociedad Operadora de
Telecomunicaciones de Castilla y León, S.A. Euskaltel,
S.A., Telecable de Asturias, S.A. (a company arising from
the merger between Telecable de Avilés, S.A., Telecable
de Oviedo, S.A. and Telecable de Gijón, S.A.), R. Cable y
Telecomunicaciones Galicia, S.A. and Tenaria, S.A. against
Commission of the European Communities

(Case T-180/03)

(2003/C 171/69)

(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

The applicants in the present action are contesting the
decisions of 14 March 2003 by which the Commission decided
to take no further action on the complaints lodged by them
against an agreement between the companies Sogecable and
Telefónica on 29 January 2003 which, in their view, gives rise
to a new concentration by comparison with the concentration
previously notified on 3 July 2002, which was referred to the
national authorities by decision of 14 August 2002 (1).

According to the applicants, the abovementioned agreement
of 20 January 2003 envisages the possibility, which had
initially been discarded, that Telefónica’s final share of Soge-
cable’s capital (23 %) should be greater than the share held by
the company’s reference partners. The agreement also provides
that Telefónica will waive certain rights affecting questions of
policy arising from the major shareholding of those assets by
Prisa and Groupe Canal+. On the other hand, Telefónica would
remain a shareholder in Sogecable with effect
from the
implementation of the concentration operation. Furthermore,
with the purpose of assisting the integration of their platforms,
Prisa, Groupe Canal+ and Telefónica each agreed to provide
Sogecable with a loan with profit participation amounting to
EUR 50 million repayable in 10 years. It was also agreed

C 171/42

EN

Official Journal of the European Union

19.7.2003

that Sogecable would offer its shareholders the option of
participating in a subordinated loan of EUR 175 million, to be
underwritten in its entirety by Telefónica. Finally, the parties
agreed that neither of their debts should exceed, prior to the
concentration, EUR 425 million and 705 million respectively,
with a maximum limit of EUR 1 130 million.

Removal from the register of Case T-253/01 (1)

(2003/C 171/70)

(Language of the case: English)

In support of their claims, the applicants allege that the
contested decisions contain manifest errors of assessment of
the facts complained of. They also take the view that the
Commission has been negligent inasmuch as it did not fully
analyse the facts. Moreover, the defendant’s assessment also
infringes the principle of equality in that it diverges from
previous decisions in which it was held that it was necessary
to submit a new notification.

Finally, the applicant companies allege that the Commission
misused its powers.

( 1) Case T-346/02 Cableuropa and Others (OJ 2003 C 19, p. 40) and
Case T-347/02 Aunacable and Others (OJ 2003 C 19, p. 40).

By order of 30 April 2003 the President of the Fourth Chamber
of the Court of First Instance of the European Communities
ordered the removal from the register of Case T-253/01: UPS
Europe NV/SA v Commission of the European Communities.

(1) OJ C 31 of 02.02.2002.

Removal from the register of Case T-24/03 (1)

(2003/C 171/71)

(Language of the case: Italian)

By order of 30 April 2003 the President of the First Chamber
of the Court of First Instance of the European Communities
ordered the removal
from the register of Case T-24/03:
Antonio Aresu v Commission of the European Communities.

(1) OJ C 70 of 22.03.2003.