Case T-321/04: Action brought on 29 July 2004 by Air Bourbon against the Commission of the European Communities
Date: 2004-10-23
Institutions: Court of First Instance
Subjects: European Commission, France, Réunion, State aid, action for annulment (EU), air transport, restriction on competition, tax relief

C 262/48

EN

Official Journal of the European Union

23.10.2004

The Danish Government states in support of its action that the
Commission's decision of 19 May 2004:

Action brought on 27 July 2004 by Port Support Customs
Rotterdam B.V. against the Commission of the European
Communities

— fails to comply with essential procedural requirements;

— infringes Article 295 EC,

the provisions of

the Treaty
concerning State aid contained in Article 87(1) EC and
Article 86(2) EC and the Communication from the
Commission on the application of State aid rules to public
service broadcasting; and

— infringes Council Regulation (EC) No 659/1999 (1) and

Commission Directive 80/723/EEC. (2)

(Case T-319/04)

(2004/C 262/90)

(Language of the case: Dutch)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 27 July 2004 by Port Support
Customs Rotterdam B.V., established in Rotterdam (Nether-
lands), represented by A.T.M. Jansen.

The Danish Government puts forward the following in support
of its principal action for annulment:

The applicant claims that the Court should:

— that the principle that both sides must be heard has been
disregarded, which has deprived the Danish Government of
the opportunity to defend itself,
thereby affecting the
outcome in the Commission's decision;

— that neither the licence-fee resources transferred to TV2 nor
the advertising revenue, which was transferred to TV2
through the TV2 fund until it was abolished in 1997, are
State aid, since they are not State resources within the
meaning of Article 87;

— that the capital built up in TV2 from 1995 to 2002 consti-
tutes reasonable earnings in the performance of its public
service obligations and that, accordingly,
it is not 'excess
compensation' constituting State aid contrary to the EC
Treaty;

— that the Commission's calculation of ‘excess compensation’

is incorrect;

— 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 and
therefore do not distort competition;

— that any State funds transferred to TV2 must be considered
to have been transferred in accordance with the criterion of
the private investor in a market economy and that it is
therefore not State aid.

(1) Council Regulation (EC) No 659/1999 of 22.3.1999 laying down
detailed rules for the application of Article 93 of the EC Treaty (OJ
1999 L 83, p. 1).

(2) Commission Directive 80/723/EEC of 25.6.1980 on the transpar-
ency of financial relations between Member States and public under-
takings (OJ 1980 L 195, p. 35).

— annul the defendant's decision of 18 May 2004;

— order the defendant to make the information available to
the applicant and to supply it with a copy of the requested
documents.

Pleas in law and main arguments:

The applicant requested access to the OLAF mission report on
footwear and textile products from Cambodia. The applicant
was granted only partial access to that report and therefore
requested access to those parts of the report which had not
been disclosed. The applicant was not granted such access.

In support of its application, the applicant alleges infringement
of Article 8 of Regulation (EC) No 1049/2001 of the European
Parliament and of the Council of 30 May 2001 regarding
public access to European Parliament, Council and Commission
documents. (1) The applicant submits that
the Commission
failed to reply to its confirmatory application.

(1) OJ 2001 L 145, p. 43.

Action brought on 29 July 2004 by Air Bourbon against
the Commission of the European Communities

(Case T-321/04)

(2004/C 262/91)

(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 29 July 2004 by Air Bourbon, a
company established in Sainte-Marie, La Réunion (France),
represented by Sauveur Vaisse, lawyer.

23.10.2004

EN

Official Journal of the European Union

C 262/49

The applicant claims that the Court should:

— annul Decision C (2003) 4708 final of 16 December 2003
by which the Commission authorised the French State to
grant aid to Air Austral;

— order the Commission and the French State to take the
measures necessary to ensure that Air Austral repays the
aid unduly received;

— order the Commission to pay Air Bourbon the sum of
EUR 10 000 in respect of costs pursuant to Article 87(2)
of the Rules of Procedure.

Pleas in law and main arguments:

it was

The applicant seeks the annulment of Decision C(2003) 4708
of 16 December 2003 by which the Commission considered,
on the basis of Article 87(3) of the Treaty, that the aid granted
to AIR AUSTRAL was compatible with the common market.
sum of
Specifically
EUR 1 950 536 in the form of a tax allowance in favour of
taxpayers who invest in the refitting of two type B 777-2000
aircraft to be used to open the route between Paris and La
Réunion and which, operating as a general partnership, will
lease those aircraft to AIR AUSTRAL for five years and then
transfer them to that company for an unknown sum.

an operating

aid in the

The contested decision is based on the consideration that the
aid in question is an operating aid which, under the Guidelines
on national regional aid, may be authorised to offset part of
the additional
regions,
including La Réunion.

in the outermost

transport costs

region and the distortions to the conditions of competition
between AIR AUSTRAL and the applicant.

AIR BOURBON also submits that there has been an infringe-
ment of its rights of defence as guaranteed by Article 88(3) of
the Treaty.

Action brought on 5 August 2004 by Colgate-Palmolive
Company against Office for Harmonisation in the Internal
Market (OHIM)

(Case T-322/04)

(2004/C 262/92)

(Language of the case: Spanish)

An action against the Office for Harmonisation in the Internal
Market (OHIM) was brought before the Court of First Instance
of the European Communities on 5 August 2004 by Colgate-
Palmolive Company, established in New York (United States),
represented by Enrique Armijo Chávarri and Antonio Castán
Pérez-Gómez, lawyers.

The applicant claims that the Court of First Instance should:

— Annul

the decision of

the Second Board of Appeal of
OHIM of 18 May 2004 delivered in Case R 0076/2004-2,
and;

The applicant considers that
considered incompatible with the common market
following reasons:

the aid in question must be
for the

— Order OHIM to pay the costs.

Pleas in law and main arguments:

— the aid is an investment aid intended for the purchase of
those

transport equipment, which is prohibited under
guidelines;

— the aid is solely intended for AIR AUSTRAL and creates an
imbalance between the distortions of competition and the
benefits in terms of regional development;

— the aid fails to comply with the principle of the non-aggre-
gation of public funds, since AIR AUSTRAL has received
public funds from the Region and Département of La
Réunion which do not correspond to an investment made
by a private investor operating under normal market condi-
tions. Those funds moreover gave rise to excess supply on
the air route between Paris and Saint Denis;

— that aid upsets the balance which must exist between the
benefits arising from the aid for the development of the

Mark covered by the
application:

Word mark
Application No 2688315.

‘SIMPLY WHITE’-

Products or services:

Dentifrices, toothpaste and mouth
wash (Class 3).

Decision
before
Appeal:

challenged
the Board of

Refusal by the Examiner of
application.

the

Decision of
of Appeal:

the Board

Application dismissed.

Grounds for decision:

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