Case T-443/03: Action brought on 31 December 2003 by Retecal Sociedad Operadora de Telecomunicaciones de Castilla y León S.A., Euskaltel S.A., Telecable de Asturias S.A., R Cable y Telecomunicaciones Galicia S.A. and Tenaria S.A.
Date: 2004-03-06
Institutions: Court of First Instance
Subjects: European Commission, Spain, action for annulment (EU), economic concentration, merger control, telecommunications

C 59/32

EN

Official Journal of the European Union

6.3.2004

2.

order the defendant to pay interest at the statutory rate
of 8 % on all amounts due;

3.

order the defendant to pay the costs.

Action brought on 31 December 2003 by Retecal Socie-
dad Operadora de Telecomunicaciones de Castilla y León
S.A., Euskaltel S.A., Telecable de Asturias S.A., R Cable y
Telecomunicaciones Galicia S.A. and Tenaria S.A.

Pleas in law and main arguments

The applicants claim to have suffered damage as a result of
Regulation No 2362/98 (1) in so far as bananas from Ecuador
do not qualify for the quota provided for in respect of
traditional ACP bananas and as a result of the ‘country
allocation’ system.

The applicants submit that, despite the Community’s express
intention to comply with the GATS and GATT 1994 Agree-
ments from 1 January 1999, as determined and ordered by the
WTO dispute-resolution bodies, there has been a sufficiently
serious breach of superior rules of law as a result of Regulation
No 2362/98 and Regulation No 1637/98 (2). According to the
applicants, the amendments made by those regulations, which
were enforced up to the end of 2001, infringe the GATS and
GATT Agreements, Community law, the principle of the
protection of legitimate expectations, the principle of good
faith, international customary law as codified in the Vienna
Convention on the Law of Treaties and are at variance with
the binding effect of the outcome of a dispute resolution
procedure which has been incorporated in an international
agreement concluded by the Community.

The applicants also allege infringement of the principle of
equal treatment and submit that the Commission exceeded its
powers of
implementation by enforcing, up to the end
of 2001, Regulation No 2362/98 containing rules on the
implementation of Regulation No 404/93 which are contrary
to the GATS and GATT 1994 Agreements. Finally,
the
applicants allege infringement of the protection of legitimate
expectations and of the general legal principle of ‘patere legem
quam ipse fecisti’ as a result of the failure to grant import
licences to the actual importer as declared to the Council.

(1) Commission Regulation (EC) No 2362/98 of 28 October 1998
laying down detailed rules for the implementation of Council
Regulation (EEC) No 404/93 regarding imports of bananas into
the Community (Text with EEA relevance) (OJ 1998 L 293, p. 32).
(2) Council Regulation (EC) No 1637/98 of 20 July 1998 amending
Regulation (EEC) No 404/93 on the common organisation of the
market in bananas (OJ 1998 L 210, p. 28).

(Case T-443/03)

(2004/C 59/51)

(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
European Communities on 31 December 2003 by Retecal
Sociedad Operadora de Telecomunicaciones de Castilla y
León S.A., established in Valladolid (Spain), Euskaltel S.A.,
established in Zamudio, (Bizkaia, Spain), Telecable de Asturias,
established in Oviedo (Spain), R Cable y Telecomunicaciones
Galicia S.A., established in La Coruña (Spain) and Tenaria S.A.,
established in Cordovilla (Navarra, Spain), represented by José
Maria Jiménez Laiglesia, lawyer.

The applicants claim that the Court should:

— annul the decision of 21 October 2003; and

— order the Commission to pay all the costs arising from

the proceedings.

Pleas in law and main arguments

The present action is brought against the decision of the
Commission to take no further action on the complaint
submitted by the applicants relating to the alleged failure by
the Kingdom of Spain to fulfil its obligations under Article 9(8)
of the Council Regulation (EEC) No 4064/89 of 21 December
1989 (1) on the control of concentrations between undertak-
ings, with respect to the merger between VIA DIGITAL Y
SOGECABLE (Case No COMP/M.2845 Sogecable/Canal Satél-
ite Digital/Vía Digital) and conditions applied to that merger
by the Spanish authorities. The applicants submit that that
article lays down an obligation to carry out investigation and
verification, which, in the present case, the Commission has
failed to fulfil.

The applicants recall that on 22 April 2003, they sent a letter
to the Commission in which they submitted, essentially, that
the conditions adopted by the Spanish authorities were not
capable of maintaining effective competition in the sector
concerned,
in that they ensured that SOGECABLE would
remain in a monopoly situation, given what was stated by the
Commission in the referral decision.

6.3.2004

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Official Journal of the European Union

C 59/33

In support of their claims the applicants submit that the
Commission, having only limited discretion, was obliged, in
accordance with the principle of sound administration, to deal
diligently and impartially with the complaint in this case. They
argue that in that respect, that the Commission’s discretion in
the matter at issue must correspond to the objective of
establishing a scheme which ensures that competition is not
distorted in the common market, so that the Member States
do not adopt, in favour of one undertaking, measures which
may give rise to the elimination or restriction of effective
competition in the market at issue.

that

the fact

the
This application also takes account of
Commission itself has assessed the conditions of competition
in the referral decision, so as to include all the criteria which
may be used for the purpose of determining whether the
measures adopted maintain or preserve competition in the
markets at issue, and also that it has accepted commitments
which are substantially different in another current and very
similar case (M.2876 Newscorp/telepiú), and that therefore it
cannot be claimed that the measures adopted by the Spanish
Government maintain or preserve competition in the markets
concerned.

as it refused the application for registration of VELOCITY
as a trade mark on the basis of Articles 7(1)(b) and (c) of
the CTMR;

— order the Office to bear its own costs and pay those of

the Applicant.

Pleas in law and main arguments

Trade mark concerned:

Verbal trade mark ‘VELOCITY’ —
Application No 1661842.

Products or services:

Products and services in classes 9,
16, 37 and 42.

Challenged
before
Appeal:

Decision
the Board of

Refusal of
examiner.

registration by the

Pleas in law:

Infringement of Article 7 (1) (b)
and (c) of Regulation No 40/94.

(1) OJ L 395 of 30.12.89, p. 1.

Action brought on 2 January 2004 by Electronics for
Imaging, Inc., against Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (OHIM)

(Case T-1/04)

(2004/C 59/52)

(Language of the case: English)

An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM) was brought before
the Court of First Instance of the European Communities on
2 January 2004 by Electronics for Imaging, Inc., Foster City,
California, USA, represented by Mr S. Malynicz, Barrister.

Action brought on 7 January 2004 by Simonds Farsons
Cisk Plc., against the Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (OHIM)

(Case T-3/04)

(2004/C 59/53)

(Language of the case to be determined pursuant to article 131(2) of
the Rules of Procedure — language in which the case was submitted:
English)

An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM) was brought before
the Court of First Instance of the European Communities on
7 January 2004 by Simonds Farsons Cisk Plc., Mriehel, Malta,
represented by Ms M. Bagnall and Mr I. Wood, Solictors and
Mr R. Hacon, Barrister. SA Spa Monopole, Compagnie fermière
de Spa, en abrégé SA Spa Monopole NV., was also a party to
the proceedings before the Board of Appeal.

The applicant claims that the Court should:

The applicant claims that the Court should:

— annul the decision of the Fourth Board of Appeal dated
25 August 2003, case number R 0793/2002-4 in so far

— annul the Decision of the First Board of Appeal of

4 November 2003;