Case T-167/04: Action brought on 13 May 2004 by Asklepios Kliniken GmbH against the Commission of the European Communities
Date: 2004-08-07
Institutions: Court of First Instance
Subjects: European Commission, Germany, State aid, action for annulment (EU), medical institution, private sector, terms for aid

C 201/16

EN

Official Journal of the European Union

7.8.2004

COURT OF FIRST INSTANCE

Assignment of Judges to Chambers

(2004/C 201/34)

refusing to grant the applicant a resettlement allowance — the
Court of First Instance, composed of J.D. Cooke, single judge; I.
Natsinas, administrator, for the Registrar, gave a judgment on
25 May 2004, in which it:

The Court of First Instance decided, at its Plenary Meeting on 8
following the entry into office as Judge of Ms
July 2004,
Trstenjak, to amend the decision of the Plenary Meeting of 2
July 2003 on the assignment of Judges to Chambers as follows:

The following are appointed for the period from 8 July 2004
to 31 August 2004

1. Dismisses the application.

2. Orders the parties to bear their own costs.

(1) OJ C 101 of 26.4.2003.

to the First Chamber, sitting with three Judges:

Mr Vesterdorf, President, Mr Mengozzi, Ms Martins Ribeiro, Ms
Labucka and Ms Trstenjak, Judges;

to the First Chamber, Extended Composition, sitting with five Judges:

Mr Vesterdorf, President, Mr Mengozzi, Ms Martins Ribeiro, Ms
Labucka and Ms Trstenjak Judges;

With regard to cases in which the written procedure was
completed and a hearing for the oral procedure held or fixed
before 8 July 2004,
the First Chamber, sitting with three
judges, and the First Chamber, Extended Composition, sitting
with five judges, shall continue to sit with the same composi-
tion as before for the oral procedure, the deliberations and the
judgment.

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 25 May 2004

in Case T-69/03: W v European Parliament (1)

(Officials — Resettlement allowance — Definition of resi-
dence — Evidence)

(2004/C 201/35)

(Language of the case: French)

In Case T-69/03: W., a former official of the European Parlia-
ment, residing in Folkestone (United Kingdom), represented by
P Goergen, lawyer, against the European Parliament (Agents: J.
de Wachter and L. Knudsen) — application for annulment of
the European Parliament of 3 June 2002
the decision of

Action brought on 13 May 2004 by Asklepios Kliniken
the Commission of
European
GmbH against
Communities

the

(Case T-167/04)

(2004/C 201/36)

(Language of the case: German)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 13 May 2004 by Asklepios Kliniken
GmbH, Königstein-Falkenstein (Germany), represented by K.
Füßer, lawyer.

The applicant claims that the Court should:

— declare that, by failing to take any decision pursuant to
Article 4(2), (3) or (4) of Regulation (EC) No 659/1999 in
response to the applicant's letter of complaint of 20
January 2003, the Commission is in breach of its obliga-
tions under Article 88 EC and Article 10(1) and Article
13(1) of Regluation (EC) No 659/1999.

Pleas in law and main arguments:

The applicant
is a company which specialises in hospital
management. It is incorporated under private law and is owned
exclusively by private interests. Since January 2003, it has been
endeavouring to obtain a decision from the Commission under
Article 4(2), (3) or (4) of Regluation (EC) No 659/1999 in rela-
tion to alleged aid in favour of publicly-owned hospitals in the
Federal Republic of Germany.

7.8.2004

EN

Official Journal of the European Union

C 201/17

The applicant maintains that privately-owned hospitals must
generally finance themselves from sums paid under health-care
arrangements entered into with the appropriate health-insur-
ance schemes and their central associations and, where applic-
able, from direct contributions for hospital construction under
funding arrangements
in place in the relevant Land. By
contrast, publicly-owned hospitals also benefit from the fact
that their regular operating losses are consistently covered by
the relevant public authorities. In the applicant's opinion, those
payments constitute aid within the meaning of Article 87(1) EC
which not only is subject to a notification requirement under
Article 88(3) EC but is also incompatible with the common
market.

The applicant also maintains that the complaint is well founded
as the Commission has failed to act notwithstanding a duty to
act upon receipt of the complaint.

errors of assessment by the Commission. More particularly, it
claims that the Commission failed to consider properly the
following matters:

— the enhancement of

the merged entity's dominance on
routes where there was no existing overlap between Air
France and KLM;

— whether the merger created or strengthened a dominant
position in markets for the purchase of airport services;

— the effects of the merger on potential competition.

that

further claims

It
the Commission failed to provide
adequate reasons to support its conclusion that the airports
‘Charles de Gaulle’ and ‘Orly’ in Paris were substitutable. Finally,
it considers that the undertakings of the parties were manifestly
inadequate to restore a structure of effective competition on
markets where dominance concerns arose and that
the
Commission committed an error of assessment in accepting
them.

Action brought on 14 May 2004 by easyJet Airline
the
Company Limited against

the Commission of

(1) OJ L 257/90, p. 13

European Communities

(Case T-177/04)

(2004/C 201/37)

(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 14 May 2004 by easyJet Airline
Company Limited, Luton, United Kingdom, represented by Mr
J. Cook, Mr S. Dolan and Mr J. Parker Solicitors.

The applicant claims that the Court should:

— Annul the Commission's Decision of 11 February 2004 in
Case No. COMP/M.3280 (Air France/KLM) declaring a
concentration to be compatible with the common market,
subject to conditions, in accordance with Article 6 (1) (b)
and Article 6 (2) of Council Regulation (EEC) No.
4064/89 (1)

— order the Commission to pay the costs

Pleas in law and main arguments:

In the contested decision the Commission concluded that the
merger between the airlines ‘Air France’ and ‘KLM’ would result
in the creation or strengthening of a dominant position on a
total of fourteen city-to-city air routes. However, the Commis-
sion declared the concentration compatible with the common
market, subject to compliance with the undertakings submitted
by the parties to the merger.

The applicant, which is itself an airline company, seeks the
annulment of that decision invoking a number of manifest

Action brought on 17 May 2004 by MPS Group Inc.,
the Office for Harmonisation in the Internal
against
Market (Trade Marks and Designs) (OHIM)

(Case T-178/04)

(2004/C 201/38)

(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 17
May 2004 by MPS Group Inc., Jacksonville, Florida, USA repre-
sented by Ms K. O'Rourke and Mr P. Kavanagh Solicitors.

Modis-Distribuiçao Centralizada SA was also a party to the
proceedings before the Board of Appeal.

The applicant claims that the Court should:

— Annul the Decision of the Fourth Board of Appeal of 4
February 2004 insofar as it upheld Opposition number
B000170599 with respect to the following services in class
‘Employment agency services, recruitment consultancy
35:
services; payroll preparation services;
recording
services; provision of temporary and permanent staff’;

time

— in the alternative, annul the decision insofar as it covers the
following services in class 35: ‘Employment agency services,
recruitment consultancy services, provision of temporary
and permanent staff’.