Case T-16/05: Action brought on 20 January 2005 by Viasat Broadcasting UK Ltd against the Commission of the European Communities
Date: 2005-04-02
Institutions: Court of First Instance
Subjects: Denmark, European Commission, State aid, action for annulment (EU), aid to disaster victims, financial requirements, investment, public service, television

2.4.2005

EN

Official Journal of the European Union

C 82/33

Pleas in law and main arguments

casting UK Ltd, West Drayton (United Kingdom), represented
by Simon Evers Hjelmborg, lawyer.

Applicant
munity trade mark:

for

Com-

The applicant

The applicant claims that the Court should:

Community trade mark
sought:

Figurative mark ‘FIRST DEFENSE
AEROSOL PEPPER PROJECTOR’
for products in class 5 (pharma-
ceutical products etc.), 8 (hand
tools and implements etc.) and 13
- Community
(ammunition etc.)
trade mark
No
643668

application

1. annul point 55 of the Commission decision of 6 October
2004 in State Aid Case No N 313/2004 – Denmark
(C(2004)3632 final) concerning the recapitalisation of TV 2/
DANMARK A/S;

2. order the defendant to pay the costs of the proceedings.

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

Defense Technology Corporation
of America

Pleas in law and main arguments:

Mark or sign cited in
opposition:

National
figurative marks ‘FIRST DEFENSE’

international, word and

Decision of the Opposi-
tion Division:

Refusal of registration

the Board

Appeal dismissed

Decision of
of Appeal:

Pleas in law:

The contested decision relates to a recapitalisation plan for the
State-owned public service television broadcasting company
TV 2/DANMARK A/S. The recapitalisation, which comprises a
capital injection by the Danish State and conversion of debt
into equity, was deemed to be necessary as a result of the
Commission's decision of 19 May 2004 (1) whereby the
Commission required Denmark to recover unlawfully granted
State aid from TV 2/DANMARK A/S, which would, however,
have resulted in technical bankruptcy of the company.

Violation of Article 8(3) of Regu-
lation 40/94 (1). The
applicant
contests the finding that
it has
failed to furnish sufficient evidence
in order to prove that the filing of
the contested mark was with the
owner's consent.

According to the contested decision,
the Commission was
unable to discount the possibility that the recapitalisation of
TV 2 under consideration might contain elements of State aid
under Article 87(1) EC. In point 55 of the contested decision,
however, the Commission found that any element of State aid
that might be linked to the planned recapitalisation of TV 2
would be compatible with the common market under Article
86(2) EC.

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

Community trade mark (OJ 11, p. 1).

Action brought on 20 January 2005 by Viasat Broadcasting
UK Ltd against the Commission of the European Commu-
nities

(Case T-16/05)

(2005/C 82/62)

(Language of the case: Danish)

In support of the form of order which it seeks, the applicant
submits that the Commission erred in law in not holding that
the
incompatible with Article
87(1) EC. That submission is based inter alia on the following
grounds:

recapitalisation plan was

— the reason why TV 2/DANMARK A/S is seeking recapitali-
sation lies in the demand for reimbursement of illegal State
aid. Consequently, authorisation to provide new aid (recapi-
talisation) would mean that Article 87(1) EC and the
Commission's decision of 19 May 2004 will be deprived of
their independent meaning;

— recapitalisation under which equity is increased to the
optimal capital structure cannot be regarded as being
compatible with the market investor principle;

— TV 2/DANMARK A/S generated a profit in 2003 without
State aid; this would suggest that the company is itself in a
position to build up its desired equity; and

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 20 January 2005 by Viasat Broad-

— an optimal capital structure is not necessary to enable TV 2/
DANMARK A/S to perform its public-service obligations.

C 82/34

EN

Official Journal of the European Union

2.4.2005

The applicant further submits that the Commission erred in
law in finding that any element of State aid which might be
linked to recapitalisation would be compatible with the
common market under Article 86(2) EC. In support of its plea
in law, the applicant submits inter alia as follows:

— the scope of Article 86(2) EC is limited to compensation for
the net supplementary costs connected with the provision
of services of general economic interest (public service).
That provision therefore does not cover State investments
in companies which are required to provide those services;

— the Danish State's investment

in TV 2/DANMARK A/S
(recapitalisation) is not compensation for the public-service
related services which it has purchased and is therefore not
compensation for the net supplementary costs arising from
the public-service obligations;

— TV 2/DANMARK A/S is not considered to have net supple-
mentary costs connected with its public-service obligations;

Action brought on 10 January 2005 by France Télécom
against Commission of the European Communities

(Case T-17/05)

(2005/C 82/63)

(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 10 January 2005 by France
Télécom, having its principal place of business in Paris, repre-
sented by Antoine Gosset-Grainville and Laurent Godfroid,
lawyers.

The applicant claims that the Court should:

1. annul Decision No C(2004)3061 adopted by the Commis-
sion on 2 August 2004 concerning State aid implemented
by France in favour of France Télécom;

2. the Commission to pay all the costs of the proceedings.

— the Commission did not check the definition of public
service and thereby accepted a very wide definition of that
term, under which the entire programme schedule of TV 2/
DANMARK A/S constitutes a public service, with the result
that
the proportionality test under Article 86(2) EC is
voided of substance; and

Pleas in law and main arguments

The pleas in law and main arguments put forward by the appli-
cant in the present case are identical to those which it put
forward in Case T-427/04.

— Article 86(2) EC cannot establish an exemption for State
aid which was granted with a view to making State compa-
nies attractive as a step in the State's sale of those compa-
nies.

The applicant also submits that the Commission was limited to
appraising the planned recapitalisation under Article 87(2) EC
and 87(3) EC, in particular Article 87(3)(c) EC, and the Com-
munity guidelines on State aid for rescuing and restructuring
firms in difficulty, (2) and that the planned recapitalisation does
not meet the conditions for exemption under those provisions.

(1) Commission Decision C(2004)1814 final of 19 May 2004 in Case C
2/2003 (ex NN 22/2002) on Danish measures benefiting TV 2/
DANMARK.

(2) Communication from the Commission, OJ C 244 of 1 October

2004, p. 2.

Action brought on 20 January 2005 by Boliden AB, Outo-
kumpu Copper Fabrication AB and Outokumpu Copper
the European
BCZ S.A. against

the Commission of

Communities

(Case T-19/05)

(2005/C 82/64)

(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 20 January 2005 by Boliden AB,
established in Stockholm (Sweden), Outokumpu Copper Fabri-
cation AB, established in Västerås (Sweden) and Outokumpu
Copper BCZ S.A., established in Liège (Belguim) represented by
C. Wetter and O. Rislund, lawyers.