Case T-271/03: Action brought on 30 July 2003 by Deutsche Telekom AG against the Commission of the European Communities
Date: 2003-11-01
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), competition, telecommunications, telephone charges

1.11.2003

EN

Official Journal of the European Union

C 264/29

Pleas in law and main arguments

The applicant claims that the Court should:

Applicant
munity trade mark:

for Com-

The applicant.

— annul the defendant’s decision of 21 May 2003, published

under Case No C(2003)1536 final;

Community trade mark
sought:

Proprietor of mark or
sign cited in the oppo-
sition proceedings:

Mark or sign cited in the
opposition:

Decision of the Oppo-
sition Division:

Figurative colour mark ‘GLOVE’
— Application No 464016 for a
range of goods and services in
Classes 25, 35 and 41.

RCN-Companhia de importaçao e
esportaçao de Texteis, Lda.

Spanish
(registration
No 1.629.840) and international
(registration No 651.424) figurat-
ive trade mark ‘GLOIBE’ and por-
tuguese (registration No 310.796)
and
(registration
No 1.981.850) word trade mark
‘GLOBE’ for goods in Class 25
(clothing, footwear and belts).

spanish

footwear

the application for
Refusal of
goods in class 25 (namely cloth-
ing,
and belts) and
admission of the Community tra-
de mark application for
the
remaining services in Classes 35
and 41.

Decision of the Board of
Appeal:

Rejection of the appeal.

Pleas in law:

application

Incorrect
of
Article 8(1) of Regulation (EC)
No 40/94 (Absence of confusion,
lack of any risk of association and
slight similarity of the products).

Action brought on 30 July 2003 by Deutsche Telekom AG
against the Commission of the European Communities

(Case T-271/03)

(2003/C 264/51)

(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 30 July 2003 by Deutsche Telekom
AG, Bonn (Germany), represented by K. Quack, U. Quack and
S. Ohlhoff, lawyers.

— in the alternative, reduce the fine imposed in Article 3 of

the decision at the Court’s discretion;

— order the defendant to pay the costs,

including pre-

litigation costs.

Pleas in law and main arguments

By the contested decision the Commission decided that the
applicant had infringed Article 82a of the EC Treaty by
charging its competitors and final customers excessive monthly
and flat-rate fees for access to its fixed network, thereby
impeding competition for access to the network on the market.
The applicant was fined EUR 12,6 million.

The applicant claims that the Commission infringed Article 82
EC on the basis that it could not be accused of anti-competitive
conduct because the amount of the contested fees could not
be excessive since there was no restriction of competition.
Contrary to the Commission’s view, the cost/price discrepancy
according to the method it used is neither appropriate nor
sufficient to support a finding that the applicant’s advance and
final-customer fees were anti-competitive. The Commission’s
analysis of the cost/price discrepancy was misconceived in its
methods and there was no restriction of competition.

The applicant also claims that the Commission exceeded its
discretion in adopting the contested decision. By its decision
the Commission is impinging on the competencies conferred
by Community law on the German regulatory authority for
post and telecommunications and attempting to correct the
way in which the contested fees are regulated. For the same
reason the decision is disproportionate. Its effect is to subject
the applicant’s fees for access to the network to twofold
regulation and it therefore undermines the legal certainty
intended to be created by the allocation of competence
established by Community law in respect of
fees in the
telecommunications sector.

Finally, by imposing a fine on the applicant, the defendant
infringed essential procedural requirements and Article 15(2)
of Regulation No 17/62.