Case T-328/03: Action brought on 25 September 2003 by O2 (Germany) GmbH & Co. OHG against Commission of the European Communities
Date: 2003-11-15
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), competition law, radio telecommunications

C 275/52

EN

Official Journal of the European Union

15.11.2003

Community trade mark Word mark ‘LA BARONNIE’ —
Application No. 2 057 487 for
sought:
products in Class 33 (alcoholic
beverages, except beers).

— annul the decision of the Commission not to include his
name on the list of promoted officials published in AN
No 2002-69 of 14 August 2002;

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

Mark or sign cited in
opposition:

The applicant.

— order the Commission to pay him token damages of
EUR 1 for the damage suffered by him as a result of the
failure to draw up the staff report for the period 1997 to
1999;

National word mark ‘BARONIA’
for products covered by Class 33
(‘wines of all types’).

— order the Commission to pay the costs.

Decision of the Oppo-
sition Division:

Opposition refused.

Decision of the Board of
Appeal:

Appeal dismissed.

Pleas in law:

application

of
Incorrect
Article 8(1)(b) of Regulation (EC)
No 40/94 (likelihood of con-
fusion).

Pleas in law and main arguments

In support of his application, the applicant alleges infringement
of Article 45 of the Staff Regulations, breach of the principle
of equal treatment and non-discrimination and manifest error
of assessment.

Action brought on 15 September 2003 by Heinrich
Winter against Commission of the European Commu-
nities

(Case T-324/03)

(2003/C 275/87)

(Language of the case: French)

Action brought on 25 September 2003 by O2 (Germany)
GmbH & Co. OHG against Commission of the European
Communities

(Case T-328/03)

(2003/C 275/88)

(Language of the case: English)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 15 September 2003 by Heinrich
Winter, residing in Overijse (Belgium), represented by Sébasti-
Jean-Noël Louis and Étienne
en Orlandi, Albert Coolen,
Marchal, lawyers.

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 25 September 2003 by O2 (Germ-
any) GmbH & Co. OHG, Munich, Germany, represented by Mr
N. Green QC, Mr K. Bacon, Barrister, Mr B. Amory, lawyer and
Ms Francesca Marchini Camia, lawyer.

The applicant claims that the Court should:

The applicant claims that the Court should:

— annul articles 2 and 3(a) of the Commission Decision of

16 July 2003 in case COMP/38.369;

— annul the decision of the Commission not to include his
name on the list of officials deemed to be most deserving
of promotion to Grade A 4 for the 2002 promotions
procedure published in Administrative Notices (AN)
No 2002-68 of 12 August 2002;

— order the Commission to pay the applicant’s costs;

— make any such further order as the Court deems appro-

priate.

15.11.2003

EN

Official Journal of the European Union

C 275/53

Pleas in law and main arguments

Action brought on 25 September 2003 by Ricci Fabio
Andrés against the Commission of the European Com-
munities

The contested decision concerns an agreement between the
applicant, O2, and T-Mobile Deutschland GmbH. The agree-
ment provides for infrastructure sharing and national roaming
for the third generation of mobile telecommunications in the
German market.

The agreement was notified to the Commission and O2 and T-
Mobile requested negative clearance under Article 81(1) EC
and Article 53(1) EEA, or in the alternative for an exemption
under Article 81(3) EC and Article 53(3) EEA. Negative
clearance was granted in respect of the infrastructure sharing
provisions. The Commission found however that the national
roaming provisions restricted competition, but granted indi-
vidual exemptions for these provisions under Article 81(3) Ec
and Article 53(3) EEA for specified periods of time.

(Case T-329/03)

(2003/C 275/89)

(Language of the case: Italian)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 25 September 2003 by Ricci Fabio
Andrés, represented by Massimo Condinanzi, avvocato.

The applicant claims that the Court should:

The applicant seeks the annulment of the specific provisions
of the decision that address the restrictions of competition
alleged to flow from national roaming, namely article 2
and 3(a) of the contested decision. The applicant submits that
the Commission’s reasoning errs in law and is insufficient.

1. Annul the decision rejecting the applicant’s candidature
in the competition COMR/B/04/2000 — Radiation pro-
tection, notified to the applicant by letter of 28 November
2002, no. B01-HR/RRA/BDU/D (2002) 14307, from the
Director of DG JRC, Mr Jean-Pierre Vandersteen;

Firstly, the applicant claims that there is no restriction on
competition within the meaning of Article 81(1) EC or
Article 53(1) EEA. According to the applicant, the decision
does not rest on an analysis of the actual effects of the
agreement on competition. The Commission would simply
rely on the assumption that the purchase by one network
operator of network services from another operator will
restrict competition between the two on coverage, quality,
transmission rates or wholesale prices. The applicant submits
this assumption is contradicted by the
furthermore that
Commission’s own factual findings and by the case-law of the
Court and the practice of the Commission.

The applicant claims secondly that the alleged restrictions of
competition do not flow from an agreement within the
meaning of Article 81(1) EC or Article 53(1) EEA, but rather
result from the unilateral actions of the applicant. According
to the applicant, the agreement does not contain any provision
restricting the competition by the applicant on coverage,
quality, transmission rates and wholesale prices, and any
restriction that could arise from the agreement, would be the
result of the unilateral commercial decisions of the applicant.
The applicant therefore submits that the agreement is not the
cause of the alleged restriction on competition.

2. Order the Commission to pay the costs.

Pleas in law and main arguments

The present action is brought against the decision contained
in the letter of 28 November 2002 of the Director of JRC
Resources in Ispra by which the applicant, who was none the
less on the reserve list for the selection procedure COMR/B/
04/2000, was notified that he did not satisfy all the necessary
requirements for recruitment, thereby excluding him from the
recruitment procedure.

In support of his pleas the applicant alleges:

— Breach of the independence and powers of the selection

board for the competition in question.

— Breach of the vacancy notice by failing to consider that it
allowed access to a Category C post. It is stated in this
regard that the vacancy notice was drawn up with
reference to access to Category C3-B5/B3 in the scientific
service. The defendant erred in stating, after the compe-
tition, that the selection procedure was for access exclus-
ively to a Category B post.