Case T-310/04: Action brought on 26 July 2004 by Ferrero oHG mbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
Date: 2004-10-23
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), confectionery product, trade-mark law

23.10.2004

EN

Official Journal of the European Union

C 262/43

Action brought on 28 July 2004 by TV2/DANMARK A/S
against the Commission of the European Communities

(Case T-309/04)

(2004/C 262/82)

(Language of the case: Danish)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 28 July 2004 by TV2/DANMARK
A/S, Odense (Denmark), represented by Olaf Koktvedgaard,
lawyer.

The applicant claims that the Court should:

— annul Commission Decision of 19 May 2004 C(2004)1814
Final
in Case C 2/2003 (ex NN 22/2002) concerning
measures taken by Denmark in favour of TV2/Danmark in
its entirety or, in the alternative, partially;

— order the Commission to pay the costs.

— that there is no State aid, even though the transferred funds
exceed TV2's net costs inherent in the performance of its
public service obligations, since the funds have in fact not
been used to cross-subsidise commercial activities;

— that TV2 has not obtained an economic advantage that it
would not have had under normal market conditions, since
the profits achieved by TV2 do not exceed reasonable earn-
ings in the performance of TV2's public service obligations,
and since the building-up of TV2's net capital was justified
based on market considerations;

— that the building-up of TV2's net capital does not exceed
what is necessary for the fulfilment of TV2's public service
obligations;

— that there cannot be a decision ordering recovery from a
public limited company created after the period of investi-
gation, TV2/Danmark A/S, since there has been no enrich-
ment for that company;

— that the claim for interest on the amount allegedly to be
repaid should be dismissed, since the amount claimed for
recovery already includes interest.

Pleas in law and main arguments:

Action brought on 26 July 2004 by Ferrero oHG mbH
the Office for Harmonisation in the Internal
against
Market (Trade Marks and Designs) (OHIM)

By the contested decision, the Commission approved the aid
granted to TV2/DANMARK from 1995 to 2002 in the form of
licence-fee resources and certain other measures as compatible
with the
an amount of
DKK 628.2 million which, in the Commission's view, consti-
tutes unlawful State aid which the Kingdom of Denmark is
obliged to recover from the applicant.

common market,

except

for

In support of its action the applicant submits that the contested
decision was adopted in a manner contrary to the essential
procedural requirements laid down in Article 87(1) EC, Article
86(2) EC, Article 295 EC and the Communication from the
Commission on the application of State aid rules to public
service broadcasting. The applicant submits in particular

— that the principle that both sides must be heard has been
disregarded, that the calculation of the excess compensation
includes amounts which do not relate to the period investi-
gated and that the basis and reasoning of the assessment of
the building-up of TV2's net capital are insufficient;

— that

the Commission's assessment

is not based on the
context at the time when the measures in favour of TV2
were taken;

— that the licence-fee resources transferred to TV2 and the
advertising revenue, which was transferred to TV2 from
1995 to 1997 through the TV2 fund, are not State aid,
since they are not State resources;

(Case T-310/04)

(2004/C 262/83)

(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 26
July 2004 by Ferrero oHG mbH, Frankfurt am Main, Germany,
represented by Dr M. Schaeffer, lawyer.

Cornu SA Fontain was also a party to the proceedings before
the Board of Appeal.

The applicant claims that the Court should:

— overrule the Decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market of 17
March 2004 in case R 01540/2002-4 and allow the opposi-
tion No. B 245 714;

— impose the costs on the Applicant for the trade mark.

C 262/44

EN

Official Journal of the European Union

23.10.2004

Pleas in law and main arguments:

Applicant for the Com-
munity trade mark:

Cornu SA Fontain

Community trade mark
sought:

Word mark ‘FERRO’ for goods in
Classes 30 (salted biscuits)

Proprietor of mark or
sign cited in the opposi-
tion proceedings:

Mark or sign cited in
opposition:

The applicant

National word mark ‘FERRERO’
for goods in classes 5, 29, 30, 32
and 33 (chocolate, etc.)

— annul the Appointing Authority's decision not to award
him any ‘Promotion Committee for additional activity in
the interests of the institution’ special priority points for the
2003 promotion year;

— annul the Appointing Authority's decision to award him a
total of 20 points for the 2003 promotion year, the list of
merit of Grade A5 officials for the promotion year 2003,
the list of officials promoted to Grade A4 in the promotion
year 2003 and, in any case, the decision not to enter his
name in those lists;

— annul, so far as may be necessary, the decision rejecting his

complaint;

— order the defendant to pay the costs.

Decision of the Opposi-
tion Division:

Opposition rejected

Pleas in law and main arguments:

Decision of
of Appeal:

Pleas in law:

the Board

Appeal rejected

Infringement of Article 8(1)(b) of
Regulation 40/94 (1)

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 11, p. 1).

Action brought on 22 July 2004 by José Luis Buendia
European
Sierra

against

the

of

the Commission
Communities

(Case T-311/04)

(2004/C 262/84)

(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 22 July 2004 by José Luis Buendia
Sierra, residing in Brussels, represented by Marc van der Woude
and Valérie Landes, lawyers.

The applicant claims that the Court of First Instance should:

— annul the decision of the Director General of the Legal
Service to award him only one Directorate-General priority
point for the 2003 promotion period, which was confirmed
and made definitive by the decision of the Appointing
Authority rejecting his informal appeal;

irrespective of

According to the applicant, the decision to award him only one
Directorate-General priority point is due to criteria established
in the Legal Service which lead to the award of such points to
officials with most seniority in grade,
their
merits. In challenging that decision, the applicant alleges infrin-
gement of Article 45 of the Staff Regulations and infringement
of Article 2(1) of the general provisions giving effect to Article
43 of the Staff Regulations and of Article 6(3) and (4) of the
general provisions giving effect to Article 45 of the Staff Regu-
lations. In addition, the applicant maintains that that decision
offends against the principle of equal treatment and the prin-
ciple that officials are to have reasonable career prospects,
contains a manifest error of assessment and amounts to
improper exercise of authority. Finally, he alleges breach of
essential procedural requirements in the procedure for the
award of points and considering the informal appeal.

Moreover, the applicant claims that the decision not to award
him any ‘Promotion Committee for additional activity in the
interests of the institution’ special priority points for the 2003
promotion year is contrary to Article 45 of the Staff Regula-
tions, Article 9 of the general provisions giving effect to Article
45 of the Staff Regulations and the principle of equal treat-
ment. In his view, that decision is also vitiated by a manifest
error of assessment and misuse of power.

Finally, the applicant challenges the decision to award him a
total of 20 points, the list of merit of Grade A5 officials, the
list of officials promoted to Grade A4 and the decision not to
enter his name in those lists. In this connection, the applicant
alleges, first of all, that the other acts challenged in this action
are unlawful and also that the rules governing staff appraisal
for the period 2001-2002, the general provisions giving effect
to Article 43 of the Staff Regulations and the general provisions
giving effect to Article 45 of the Staff Regulations are unlawful.
In his view, those provisions offend against Articles 25(2) and
45 of the Staff Regulations, the principle that officials are to
have reasonable career prospects and the principle of equal
treatment. Last, the applicant claims that those decisions are
vitiated by lack of competence and breaches of essential proce-
dural requirements.