Case T-309/04: Action brought on 28 July 2004 by TV2/DANMARK A/S against the Commission of the European Communities
Date: 2004-10-23
Institutions: Court of First Instance
Subjects: Denmark, European Commission, State aid, action for annulment (EU), broadcasting, public service, quasi-fiscal charge, television

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.