Case T-397/04: Action brought on 6 October 2004 by MobilCom Aktiengesellschaft against the Commission of the European Communities
Date: 2004-12-18
Institutions: Court of First Instance
Subjects: European Commission, Germany, State aid, action for annulment (EU), distance selling, mobile phone

18.12.2004

EN

Official Journal of the European Union

C 314/23

Action brought on 6 October 2004 by MobilCom Aktien-
the European
gesellschaft against

the Commission of
Communities

(Case T-397/04)

(2004/C 314/55)

(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 6 October 2004 by MobilCom
(Germany), represented by K.
Aktiengesellschaft, Büdelsdorf
Jacobsen, U. Wellmann and T. Sharpe.

The applicant claims that the Court should:

— annul the decision of the Commission of the European
Communities of 14 July 2004 concerning aid C5/03 (ex
N 239/03);

— in the alternative, annul Article 1 of the decision of the
Commission of the European Communities of 14 July 2004
concerning aid C5/03 (ex N 239/03),
in so far as it is
stated in the final clause ‘ … provided that Germany satis-
fies the condition referred to in Article 2 of this Decision’,
and annul Articles 2 and 3 of that decision in their entirety.

Pleas in law and main arguments:

By the contested decision, State aid granted to the applicant by
Germany was declared to be compatible with the common
market, subject to compliance by Germany with the condition
referred to in Article 2 of that decision. As a result of that
condition, the applicant is required to close its ‘online shop’ for
seven months.

The applicant submits, first, that the Commission has no mate-
rial competence. Since the applicant exercises its activity as an
intermediary for the sale of mobile telephony contracts exclu-
sively in Germany, the grant of State aid cannot prejudice trade
between the Member States.

Moreover, the applicant argues that there is no appropriate
legal basis for the imposition of such a condition and that
there has therefore been an infringement of the EC Treaty or a
provision to be applied in implementing the Treaty.

therefore alleges that

According to the applicant,
the condition imposed on the
applicant is arbitrary as the reasons given for it are inadequate.
The applicant
the Commission either
erred in the exercise of it discretion or failed to exercise that
discretion. Furthermore, the Commission failed to show clearly
that the contested decision is necessary, appropriate and also
the least restrictive measure and thus failed to comply with the
principle of proportionality.

Action brought on 11 October 2004 by Borco-Marken-
Import Matthiesen GmbH & Co. KG against the Office for
Harmonisation in the Internal Market (Trade Marks and
Designs)

(Case T-405/04)

(2004/C 314/56)

(Language of the case: German)

An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on 11
October 2004 by Borco-Marken-Import Matthiesen GmbH &
Co. KG, Hamburg (Germany),
represented by M. Wolter,
lawyer.

The applicant claims that the Court should:

— annul the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market
(Trade
Marks and Designs) of 13 August 2004 in Case R
912/2002-2;

— declare that the provisions of Article 7(1)(b) and (c) and
7(2) do not prevent publication of the mark applied for,
‘Caipi’,
for goods in Class 33 (alcoholic beverages (not
including beer));

— order the defendant to pay the costs.