Case T-163/03: Action brought on 4 May 2003 by Scania AB against the Commission of the European Communities
Date: 2003-08-02
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), dominant position, economic concentration, merger control, share

2.8.2003

EN

Official Journal of the European Union

C 184/37

Pleas in law and main arguments

The applicant claims that the Court should:

The applicants in the present case seek the annulment of the
Commission's Decision approving the grant by the United
in the form of ‘rescue aid’, to British
Kingdom of State aid,
Energy plc (BE), a generator of electricity in the United
Kingdom. The main source of its electricity is nuclear power.

The applicants contend that the contested Decision is unlawful
in as much as it
failed adequately or properly to assess
whether the aid was warranted by serious social difficulties,
and whether the amount of aid was restricted to the minimum
necessary, both in accordane with point 23(e) of the Guidelines
on State aid for Rescuing and Restructureting firms in diffi-
culty (1).

in the absence of

In particular, the applicants submit that the defendant institu-
the aid in
tion wrongly concluded that,
question, BE would be insolvent and would most certainly
have to cease operations, without considering whether puttig
BE into administration would have been an appropriate rescue
option entailing the grant of
the possibility
involving the closure of only one or several of its plants as
opposed to all of them.

less aid, nor

Moreover,
the applicants dissagree with the Commision's
conclusion that nuclear plants cannot be mothballed and that
BE's plants could not be closed without giving rise to serious
concerns over nuclear safety.

that

submit

the applicants

the Commission have
Finally,
wrongly concluded that the closure of BE's plants led to a
loss of 20 % of UK electricity generating capacity such as to
threaten security of supply and, in any event, failed to consider
the reduced impact on generating capacity of closing only one
or several of BE's plants.

(1) OJ 1999 No C 288, p. 2.

Action brought on 30 April 2003 by Michael Cwik against
the Commission of the European Communities

(Case T-157/03)

(2003/C 184/84)

(Language of the case: French)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 30 April 2003 by Michael Cwik,
residing at Tervuren, Belgium, represented by N. Lhoëst, lawyer,
with an address for service in Luxembourg.

— annul the Secretary-General's decision of 13 June 2002
which confirms, without amendment, the applicant's staff
report for the period from 1 July 1997 to 30 June 1999;

— annul

the Commission's decision of 13 January 2003
lodged by the applicant on

rejecting the complaint
13 September 2002;

— order the defendant to pay damages of EUR 10 000;

— order the defendant to pay the full costs of the proceed-

ings.

Pleas in law and main arguments

The applicant is an official in DG II of the European Commis-
sion. With a delay of almost two years, the appellant was the
subject of a staff report for the period 1997 to 1999. That
report was confirmed by the appeal assessor.

The applicant claims that the Commission made a manifest
error of assessment and misused its powers in drawing up that
report. In support of his claims, the applicant also maintains
that the Commission failed to comply with Article 43 of the
Staff Regulations, thus giving rise to procedural defects. Finally,
failed to comply with its obligation to state
the defendant
reasons.

Action brought on 4 May 2003 by Scania AB against the
Commission of the European Communities

(Case T-163/03)

(2003/C 184/85)

(Language of the case: English)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 4 May 2003 by Scania AB, Söder-
tälje, Sweden, represented by Mr S. Pappas, lawyer.

The applicant claims that the Court should:

— annul the Decision of 4 Mars 2003 of the Merger Task

Force of the European Commission.

— annul the Decision of 16 April 2003 of the Merger Task

Force of the European Commission.

— annul the Decision of 24 April 2003 of the Merger Task

Force of the European Commission.

— annul

the refusal of

the Commission to review the
arrangement of
the shareholding of
Volvo in Scania and enforce an immediate divestiture as
requested during the meeting of the 20th February 2003
and put on in the letter of the 21st February 2003.

the divestiture of

C 184/38

EN

Official Journal of the European Union

2.8.2003

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

Pleas in law and main arguments

the Court of First Instance of the European Communities on
8 May 2003 by Ampafrance SA, established in Cholet (France),
represented by C. Bercial Arias, lawyer.

Johnson & Johnson GmbH was also a party to the proceedings
before the First Board of Appeal.

The applicant is a truck and bus manufacturer. By means of
the contested decisions, the Commission refused to enforce an
immediate divestiture of
the shareholding of AB Volvo in
Scania AB and refused to communicate to the applicant the
confidential terms of the divestiture of the Shareholding of AB
Volvo in Scania AB as stipulated in the AB Volvo/Renault
Véhicule
these
Commission Decisions, AB Volvo has been able to maintain a
dominant position vis-à-vis Scania for almost 4 years.

(VI) decision. On the basis of

Industriel

In support of its claim, the applicant invokes Articles 8 (4), 6
and 18(3) of the Merger Regulation (1).

According to the applicant, the Commission infringed Article 8
the Merger Regulation by refusing to enforce an
(4) of
immediate divestiture at the applicant's request. The applicant
argues that the minority shareholding of AB Volvo constitutes
de jure and de facto, sole or joint control with investor AB
over Scania which should have been stopped by the Commis-
sion.

the applicant

invokes Article 6 of

Furthermore,
the Merger
Regulation. The applicant submits that the Commission should
have revoked the Volvo/Renault decision and reviewed the
terms of
the divestiture. The applicant alleges that Volvo
infringed its undertaking pertaining to the divestiture when
participating in the decision-making process of Scania.

The applicant also claims that the Commission should have
disclosed to Scania the information relating to the confidential
approved terms of the divestiture as stipulated in the Volvo/
Renault
(VI) decision. The applicant claims to be a directly
involved party to whom the Commission should have granted
access
to the information contained in the Volvo/Renault
decision.

the applicant argues that any prolongation for

Finally,
the
accomplishment of the divestiture from 2003 to 2004 is not
automatic but should have been assessed and justified by the
Commission.

The applicant claims that the Court should:
— annul or vary those parts of the decision given by the
First Board of Appeal of the defendant on 4 March 2003
in Case R 220/2002-1 in which the applicant's claims
‘babies'
were not upheld and, consequently,
napkins of absorbent cotton’ are not similar to the goods
‘bebe’
covered
German
(No 1 168 346), that there are no similarities liable to
lead to a likelihood of confusion between the marks
‘bebe’ and ‘monBeBé’
(logo) and that Community trade
mark application No 297 309 is to be registered in its
entirety;

trade mark

rule that

the

by

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant
trade mark:

for Community

Ampafrance SA

Community
sought:

trade mark

Mixed word and figurative mark
‘monbebé’ — Application
No 297 309,
lodged in respect
of goods in Classes 3, 5, 8, 10,
11, 12, 18, 20, 21, 22, 24, 25
and 28.

Proprietor of mark or sign
cited in the opposition pro-
ceedings:

Johnson & Johnson GmbH

Mark or sign cited in op-
position:

National trade mark ‘bebe’, re-
gistered for goods in Classes 3,
16 and 24.

(1) Council Regulation (EEC) No 4064/89 of 21.12.1989 on the
control of concentrations between undertakings (JO L 257, p. 13).

Decision of the Opposition
Division:

Rejection of the opposition.

Action brought on 8 May 2003 by Ampafrance SA against
the Office for Harmonisation in the Internal Market
(Trade Marks and Designs) (OHIM)

(Case T-164/03)

(2003/C 184/86)

(Language of the case: French)

An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM) was brought before

Decision of
Appeal:

the Board of

the deci-
Partial annulment of
sion of the Opposition Division
and partial rejection of the ap-
plication for registration as re-
such as
gards
the re-
soaps etc; dismissal of
mainder of the appeal

certain goods

Pleas in law:

Misapplication of Article 8(1)(b)
of Regulation (EC) No 40/94
(likelihood of confusion).