Case T-475/04: Action brought on 24 November 2004 by Bouygues SA and Bouygues Télécom against the Commission of the European Communities
Date: 2005-03-19
Institutions: Court of First Instance
Subjects: European Commission, France, State aid, action for annulment (EU), control of State aid, patents licence, telecommunications industry, telephone, waveband

C 69/20

EN

Official Journal of the European Union

19.3.2005

Decision of
of Appeal:

the Board

The Board of Appeal held that as
a result of amendments to the
specification of the relevant goods
in accordance with a joint letter
from the parties of 4 June 2004,
the opposition had been with-
drawn and the proceedings had
therefore been terminated. Since
according to the Board of Appeal
the only question to be decided
was the allocation of costs, each
party was ordered to bear the fees
the opposition
and expenses of
and appeal proceedings which it
had itself incurred.

Pleas in law:

The pleas relied on are identical to
those put forward in Case T-466/
04 brought by the same applicant.

Action brought on 24 November 2004 by Bouygues SA
and Bouygues Télécom against the Commission of the
European Communities

(Case T-475/04)

(2005/C 69/37)

(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 24 November 2004 by Bouygues
SA, established in Paris, and Bouygues Télécom, established in
Boulogne-Billancourt
represented by Louis Vogel,
Joseph Vogel, Bernard Amory, Alexandre Verheyden, François
Sureau and Didier Théophile, lawyers.

(France),

The applicants claim that the Court should:

1. annul Commission decision C(2004)2647 of 20 July 2004 –
State aid – France concerning alteration of the fees payable
by Orange and SFR for the Universal Mobile Telecommuni-
cation System (UMTS) licences;

2. order the Commission to pay the costs.

Pleas in law and main arguments

is

of

the

action

brought

against Commission

This
decision
C(2004)2647 final of 20 July 2004 concluding that aid was
not granted by the French State to Orange France and SFR by
way
of
EUR 4 995 000 000 which each of those operators had under-
taken to pay to the French State for the Universal Mobile Tele-
communication System (UMTS) licence awarded to it on 18
July 2001. By the adoption of that decision, the complaint
lodged by the applicant companies was rejected.

retroactive

reduction

the

fee

in

It is recalled in that regard that the French Government issued
two invitations to apply for the award of the UMTS licences.
The first, in which Orange France and SFR participated, was
launched in August 2000. The amount of the fee had been set
at EUR 4 995 000 000 per licence. Bouygues Télécom had
decided not to compete on account of the price set. In the
second invitation to apply, the amount of the fee was reduced
to EUR 619 000 000. Bouygues Télécom was awarded a
UMTS licence following that second procedure. However,
in
the meantime, the French Government decided to align retroac-
tively the amount of the fees provided for in the first procedure
with that provided for in the second invitation to apply.

In support of their claims, the applicants plead, first, infringe-
ment of Article 87 of the Treaty. They argue in that regard
that:

— State licence fees are public revenue and that the French
State, by altering retroactively the amount of
the fees
payable by Orange and SFR, waived its right to collect a
debt in an immediately available form, payable and of a
fixed amount;

— By relying on the consideration that the contested decision
is justified by the principle of non-discrimination,
the
Commission avoided discussion of the substance of the
issue. It is argued inter alia in that regard that Orange and
SFR were able, through the effect of the French Govern-
ment's decision, to enjoy a temporal advantage arising from
the possibility of penetrating the UMTS market early while
being guaranteed, even though nothing had been envisaged
to that effect during the first invitation to apply, that the
amount of their UMTS licence fee would be reduced to the
level of that required in respect of the second invitation to
apply;

— The decision at issue had a real effect on competition by
enabling Orange and SFR, which were already powerful
to
operators on the French mobile telephony market,
consolidate their position on the emerging UMTS market
and, as a result, to restrict the access of their competitors to
that market.

19.3.2005

EN

Official Journal of the European Union

C 69/21

the applicants submit

In addition,
that, by merely stating,
without any further explanation, that the award of the UMTS
licences cannot be treated as a market transaction, the defen-
in breach of Article 230 of the Treaty, failed to state
dant,
proper reasons for its decision.

Finally, the applicants submit that the Commission infringed
Articles 87 and 88 EC by not examining the measure at issue
by way of the formal review procedure laid down by those
provisions.

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

Trade mark or
cited in opposition:

sign

TDK Kabushiki Kaisha

Community and national word
and figurative marks TDK for
goods in Class 9 (apparatus for
recording etc.)

Decision of the Opposi-
tion Division:

Registration denied

Action brought on 14 December 2004 by Aktieselskabet
af 21. November 2001 against the Office for Harmonisa-
tion in the Internal Market (Trade Marks and Designs)

Decision of
of Appeal:

Pleas in law:

the Board

Appeal dismissed

Article 8 paragraph 5 of Council
Regulation No 40/94 does not
apply in this case.

(Case T-477/04)

(2005/C 69/38)

(Language in which the application was lodged: English)

Action brought on 8 December 2004 by Armour Pharma-
ceutical Company against the Office for Harmonisation in
the Internal Market (Trade Marks and Designs)

An action against the Office for Harmonisation in the Internal
(Trade Marks and Designs) was brought before the
Market
Court of First Instance of the European Communities on 14
December 2004 by Aktieselskabet af 21. November 2001,
established in Brande (Denmark), represented by C. Barrett
Christiansen, lawyer.

TDK Kabushiki Kaisha (TDK Corporation), established in Tokyo
(Japan), was also a party to the proceedings before the Board of
Appeal.

The applicant claims that the Court should:

— Annul Decision R 364/2003-1 of 7 October 2004 of the
First Board of Appeal of the Office for Harmonisation in
the Internal Market

Pleas in law and main arguments:

Applicant
munity trade mark:

for

Com-

The applicant

Community trade mark
concerned:

Word mark TDK for goods in
class 25 (clothing, footwear, head-
gear) — application
number
1214675

(Case T-483/04)

(2005/C 69/39)

(Language in which the application was submitted: French)

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 8
December 2004 by Armour Pharmaceutical Company, estab-
lished in Bridgewater (United States), represented by Richard
Gilbey, lawyer.

Teva Pharmaceutical Industries Limited was also a party to the
proceedings before the Fourth Board of Appeal.

The applicant claims that the Court should:

1. annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market
(Trade
Marks and Designs) of 7 September 2004 (Case R
295/2003-4) and confirm the decision of the Opposition
Division of 28 February 2003 by upholding the opposition
in its entirety;

2. order the defendant to pay the costs.