Case T-389/04: Action brought on 23 September 2004 by the Federal Republic of Germany against the Commission of the European Communities
Date: 2004-12-04
Institutions: Court of First Instance
Subjects: European Commission, Germany, State aid, action for annulment (EU), contract, control of State aid, market approval, mobile phone, restriction on competition

4.12.2004

EN

Official Journal of the European Union

C 300/47

Concerning the Commission's refusal to grant access to the
costs of the construction items the applicant submits that the
Commission mistakenly considered that this application did not
constitute an application for access to documents and thus
violated Articles 7 and 8 of Regulation 1049/2001.

Finally, the applicant invokes a manifest lack of good faith and
a violation of the principle of good administration by the
Commission, which failed to indicate, in its contested decision,
when it expected to be in possession of the sub-contracts.

Trade mark or
asserted
opposition:

by way

sign
of

national word and figurative mark
‘CLEN’

Decision of the Opposi-
tion Division:

rejection of notice of opposition

Decision of
of the Appeal:

the Board

dismissal of the appeal

(1) OJ L 145 of 31.5.2001, p. 43 - 48.
(2) OJ L 345 of 29.12.2001, p. 94 - 98.

Pleas in law:

application of Article
incorrect
8(1)(b) of Regulation (EC) No
40/94 (1)

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

Community trade mark – OJ L 11, 14.01.1994, pp. 1-36

Action brought on 22 September 2004 by RB Square
Holdings Spain S.L. against the Office for Harmonisation
in the Internal Market

(Case T-384/04)

(2004/C 300/91)

Action brought on 23 September 2004 by the Federal
Republic of Germany against the Commission of the Euro-
pean Communities

(Language in which the application was drafted: French)

An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 22 September 2004 by RB Square
Holdings Spain S.L., established in Barcelona (Spain), repre-
sented by K. Manhaeve, lawyer, with an address for service in
Luxembourg.

Unelko N.V. was also a party to the proceedings before the
Fourth Board of Appeal.

The applicant claims that the Court should:

— annul Decision R 652/2002-4 of

the Fourth Board of

Appeal of the Office

(Case T-389/04)

(2004/C 300/92)

(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 23 September 2004 by the Federal
Republic of Germany, represented by C.-D. Quassowski, acting
as Agent, and G. Quardt, lawyer.

— order the Office to pay all the costs.

The applicant claims that the Court should:

Pleas in law and main arguments:

Applicant for the Com-
munity trade mark:

Unelko N.V.

Community trade mark
concerned:

figurative mark ‘clean x’ — Appli-
filed for
cation No 222 471,
goods
in Class 3 (bleaching
preparations, etc.)

Proprietor of the mark
or sign asserted by way
of opposition in the
opposition proceedings:

the applicant

— annul Commission Decision C(2004)2641 of 14 July 2004
on restructuring aid for MobilCom, insofar as the Commis-
sion thereby requires Germany to ensure that MobilCom
and all companies in its group close their Online-Shops for
the direct online sale of MobilCom mobile telephone
contracts for the period of seven months, that for that
period of closure of the Online-Shops the direct online sale
of MobilCom mobile telephone contracts via the MobilCom
Shops website is also discontinued, that MobilCom and
companies in its group take no other steps to circumvent
those conditions and that clients are not transferred directly
via an automatic link on the relevant website to a sales
partner;

— order the Commission to pay the costs.

C 300/48

EN

Official Journal of the European Union

4.12.2004

Pleas in law and main arguments:

In support of its action, the applicant submits that Article
88(2) EC does not permit the Commission to impose on the
Member State in question measures for
the reduction or
removal of effects of State aid which distorts competition other
than measures to recover that aid. Nor are the measures
provided for in Article 2 of the contested decision valid as a
modification of the aid, or as conditions or requirements which
could be covered by Article 7(4) of Regulation 659/1999. As a
result, the Commission has therefore exceeded its margin of
discretion and infringed Article 10 EC, which imposes a duty
of loyal cooperation between the Member States and the EC
institutions, particularly since Germany has expressly stated
that it is not in a position to guarantee compliance with the
conditions.

The applicant
the Commission has
committed grave errors of assessment in its examination of the
compatibility of the aid with the common market.

submits

further

that

Action brought on 28 September 2004 by Carla Piccinni-
Leopardi, Carlos Martínez Mongay and Georgis Katalagar-
the Commission of
the European
ianakis
Communities

against

(Case T-390/04)

(2004/C 300/93)

(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 28 September 2004 by Carla
Piccinni-Leopardi and Carlos Martínez Mongay, residing in
Brussels, and by Georgis Katalagarianakis, residing in Overijse
(Belgium), represented by Sébastien Orlandi, Albert Coolen,
Jean-Noël Louis and Etienne Marchal, lawyers, with an address
for service in Luxembourg.

The applicants claim that the Court should:

— annul

the Commission's decision awarding merit and
priority points to the applicants by way of credit for the
past and the decision not to promote them to grade A 4;

— order the defendant to pay the costs.

of the modification of their classification in grade on recruit-
ment and not to promote them to grade A 4 in the course of
that procedure.

In support of their claims they plead:

— infringement of Articles 43 and 45 of the Staff Regulations
insofar as, even though their staff reports were drawn up
beforehand, the applicants were none the less subject to a
blanket award of credit for past merit. The applicants point
out in that connection that, in their view, the award of one
transitional point for seniority in grade disregards the prin-
ciple that promotion should follow a consideration of the
comparative merits of officials;

— infringement of the principle of equal treatment and non-
discrimination and of Article 5(3) of the Staff Regulations
and of the principle of the right to career advancement. In
that regard, the applicants point out that those officials
who have not been promoted for a long time because their
performance was not considered sufficiently deserving, have
been awarded priority points individually and will receive
them in the 2004 promotions procedure. On the other
hand, the applicants, whose merits, it is alleged, could not
be taken into account at their true value from the start of
their career, are treated in the same way as officials who
were not eligible for classification in a higher grade on
recruitment;

— infringement of Article 233 EC. In that regard they point
out that, in their view, the question which arises here is
whether, since the general implementing provisions relating
to the classification criteria have been declared unlawful
and the Commission has undertaken to reconsider the clas-
sification of the many officials recruited under those general
provisions, the decision to fix the applicants' classification
on recruitment at the higher grade in the career bracket
may be so restrictive as to deprive it of any useful effect.

Action brought on 5 October 2004 by Guido Strack
against the Commission of the European Communities

(Case T-298/04)

(2004/C 300/94)

(Language of the case: German)

Pleas in law and main arguments:

The applicants in these proceedings contest the defendant's
decision not to award them specific merit or priority points in
the course of the 2003 promotions procedure to take account

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 5 October 2004 by Guido Strack,
residing in Wasserliesch (Germany), represented by J. Mosar,
lawyer, with an address for service in Luxembourg.