Case T-12/05: Action brought on 7 January 2005 by TV Danmark A/S and Kanal 5 Denmark Ltd., against the Commission of the European Communities
Date: 2005-03-19
Institutions: Court of First Instance
Subjects: Denmark, European Commission, State aid, action for annulment (EU), competition law, control of State aid, private media, public service, services of general interest

19.3.2005

EN

Official Journal of the European Union

C 69/23

The applicant claims that the Court should:

The applicant claims that the Court should:

— annul the contested decision of the Board of Appeal of the

OHIM;

— allow the registration of the Community trade mark appli-

cation No 1 155 712;

— order the OHIM to pay the costs in accordance with Article
the Court of First

the Rules of Procedure of

87(2) of
Instance.

Pleas in law and main arguments

Community trade mark
concerned:

The three dimensional mark of a
white and blue rectangular tablet
with an oval red centre for goods
in classes 1 and 3 (Chemical
products for industrial purposes;
bleaching preparations and other
laundry use and
substances for
dishwashing,...)
- application No
1 156 595

Decision of
iner:

Decision of
of Appeal:

Pleas in law:

the exam-

Rejection of the application

the Board

Dismissal of the appeal

Violation of Article 7(1)(b) of
Council Regulation No 40/94

— annul

the Decision of

the European Commission of 6
October 2004 in the State aid matter N 313/2004 -
Denmark Recapitalisation of TV2/Danmark A/S;

— order the Commission to pay the applicants'

fees,
costs and other expenses incurred in connection with this
application.

legal

Pleas in law and main arguments

The contested decision relates to an injection of capital and a
conversion of a State loan into equity by the Danish Govern-
ment for the benefit of TV2/Danmark A/S, which it considered
necessary to avoid the bankruptcy of TV2 resulting from the
repayment of amounts of
illegal State aid ordered by the
Commission in a decision of 19 May 2004 (1) establishing the
Government's overcompensation of TV2's public service cost.
In the contested decision, the Commission held that State aid
might be involved in the Government's recapitalisation of TV2,
but that if so it would be compatible with the common market
under Article 86(2) EC.

that

in adopting the decision,

The applicants submit
the
Commission infringed Articles 86(2), 87(1), 88(2) and 253 EC,
the Protocol annexed to the EC Treaty on the system of public
broadcasting in the Member States, Council Regulation (EC) No
659/1999 of 22 March 1999 laying down detailed rules for the
application of Article 93 of the EC Treaty (2), and the Commu-
nication from the Commission on the application of the State
aid rules to public service broadcasting (3).

Action brought on 7 January 2005 by TV Danmark A/S
and Kanal 5 Denmark Ltd., against the Commission of the
European Communities

(Case T-12/05)

(2005/C 69/42)

(Language of the case: English)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 7 January 2005 by TV Danmark A/
S, Skovlunde, (Denmark) and Kanal 5 Denmark Ltd., Hounslow
(United Kingdom) represented by D. Vandermeersch, T. Müller-
Ibold, K. Nordlander and H. Peytz, lawyers with an address for
service in Luxembourg.

In support of their application, the applicants submit that the
Commission infringed Articles 87(1), 88(3) and 86(2) EC,
when, after having found that the private investor principle, as
applied to long-term investment, could not be invoked given
the uncertainty surrounding the planned privatisation of TV2,
it failed to establish and to quantify the State aid.

Secondly, the applicants submit that the Commission infringed
Article 86(2) EC, the Protocol, and the Broadcasting Communi-
cation when it based itself on a definition of a service of a
general economic interest which is too broad, too imprecisely
worded and creates a distortion of competition and an effect
on trade contrary to Article 86(2) EC. The applicants also claim
that the Commission failed to establish that compliance with
the Recovery Decision without the subsequent recapitalisation
would obstruct TV2 in the performance of its public service
tasks.

C 69/24

EN

Official Journal of the European Union

19.3.2005

According to the applicants,
the Commission furthermore
failed to establish that the development of trade would not be
affected by the recapitalisation to such an extent as is contrary
to the interest of the Community.

Thirdly, the applicants submit that the Commission infringed
Article 86(2) EC, the Protocol, and the Broadcasting Communi-
cation when it failed to establish TV2's net public service costs
which could be funded by the State and committed manifest
errors of assessment when applying the proportionality test.

the Court of First Instance of the European Communities on 7
January 2004 by Castell del Remei S.L, represented by Jorge
Grau Mora and Alejandro Angulo, of the Barcelona Bar; Maria
Baylos Morales and Antonio Velazquez Ibanez, of the Madrid
Bar; Fernand de Visscher, Emmanuel Cornu, Eric de Gryse and
Donatienne Moreau, of the Brussels Bar, lawyer.

The applicant claims that the Court should:

1. set aside the decision of the First Board of Appeal, of 27

October 2004, delivered in Case R 0691/2003-1; and

the applicants submit

Fourthly,
the contested decision
infringes Articles 87 and 88 EC and the right to equal treat-
ment as it perpetuates, contrary to the Commission's State aid
recovery policy, the unlawful advantage of the illegal aid and
the resulting distortion of competition.

that

2. order OHIM to pay the costs.

Pleas in law and main arguments:

Fifthly, the applicants submit that the Commission infringed
Article 88(2) EC and Article 4(4) of the Procedural Regulation
when it decided not to open the formal investigation procedure
giving interested third parties the opportunity to be heard.

Applicant
munity trade mark:

for

Com-

The applicant

Finally, the applicants claim that the Commission infringed
Article 253 EC when it failed to properly state its reasons for
adopting the contested decision.

Community trade mark
sought:

Word mark ‘ODA’ — Application
No 1.655.786, for goods in Class
33 (alcoholic beverages,
except
beers)

(1) Commission Decision of 19 May 2004 in case C 2/2003 - State

funding of TV2/Denmark

(2) OJ L 83, p. 1
(3) OJ 2001 C 320, p. 5

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

Bodegas Roda S.A.

Mark or sign cited in
opposition:

RODA’

‘RODA
‘RODA

International word mark ‘RODA’
(No 703.486), Spanish word mark
(No
‘BODEGAS
(No
1.757.553),
2.006.615),
(No
2.006.616), and Greek national
mark ‘RODA’
for
wines and spirits in Class 33 and
the trade name ‘BODEGAS RIOJA’
for the ‘business dedicated to the
creation and production of wines’.

(No 137.050)

II’
I’

Action brought on 7 January 2004 by Castell del Remei
S.L against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM)

Decision of the Opposi-
tion Division:

Opposition upheld and application
refused.

(Case T-13/05)

(2005/C 69/43)

(Language of the case: Spanish)

Decision of
of Appeal:

Pleas in law:

the Board

Appeal dismissed.

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

An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM) was brought before