Case T-87/05: Action brought on 25 February 2005 by EDP-Energias de Portugal S.A. against the Commission of the European Communities
Date: 2005-04-02
Institutions: Court of First Instance
Subjects: European Commission, Portugal, action for annulment (EU), economic concentration, energy industry, financial institution, investment, natural gas

C 82/44

EN

Official Journal of the European Union

2.4.2005

The applicant claims that the Court should:

— set aside the decision of the First Board of Appeal of 8

November 2004 in Case R 159/2004, and

Action brought on 25 February 2005 by EDP-Energias de
Portugal S.A. against the Commission of the European
Communities

— order O.H.I.M. to pay the costs.

Pleas in law and main arguments:

On 8 March 2001 Luis Calvo Sanz applied for registration of
the figurative mark ‘CALVO’
in respect of
products in Classes 29, 30 and 31.

(No 2.127.132)

On 21 December 2001 Calavo Growers of California,
the
applicant in these proceedings, lodged a notice of opposition
against the earlier application, on the basis of the word Com-
munity trade mark ‘CALAVO’
(No 102.822) registered for
products in Classes 29 and 31. This notice of opposition fell
into two parts. The first contained a form in Spanish, indicating
the language of the opposition proceedings, the application for
registration under challenge, the opponent and its representa-
tive, the current account for payment of the fee and the earlier
Community trade mark. This first part also stated that the
opposition was based on ‘all the products/services in respect of
which the earlier trade mark has been registered/applied for’,
and on ‘an earlier trade mark and the risk of confusion’.

The second part of the notice of opposition contained a state-
ment of the grounds of opposition. That part of the notice was
drafted in English.

On 18 December 2003 the Opposition Division gave its deci-
sion No 2927/2003, upholding in part the applicant's opposi-
tion. That decision did not take into consideration the claims
made in English, because they had not been translated into the
language of the case within the period prescribed for that
purpose.

(Case T-87/05)

(2005/C 82/78)

(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 25 February 2005 by EDP-Energias
de Portugal, established in Lisbon (Portugal), represented by C.
Botelho Moniz, R. García-Gallardo, A. Weitbrecht and J. Ruiz
Calzado, lawyers.

The applicant claims that the Court should:

— annul the Commission's Decision of 9 December 2004 in
case number COMP/M.3440 EDP/GNI/GDP declaring the
concentration by which Energias de Portugal SA and ENI
Portugal Investment S.p.A. acquire joint control over Gás
incompatible with the common
de Portugal SGPS S.A.
market;

— order the Commission to pay the costs of the proceedings

including the costs of the applicant.

Pleas in law and main arguments

The competent Board of Appeal upheld the action brought by
the applicant for a Community trade mark against that deci-
sion, on the ground that the Opposition Division had no juris-
diction to rule on the opposition, because the applicant's argu-
ments on the merits of the case were inadmissible, for want of
translation into the language of the case.

By the contested decision the Commission declared incompa-
tible with the common market the concentration by which the
applicant
Investment S.p.A.
acquired joint control over Gás de Portugal SGPS S.A., a
company whose activities in the gas sector cover all levels of
the distribution and supply chain in Portugal.

together with ENI Portugal

In support of its claims, the applicant alleges infringement of
Articles 42(3) and 74(1) of Regulation (European Communities)
No 40/94 on the Community trade mark, in conjunction with
Rule 20(3) of the Implementing Regulations.

In support of its application the applicant submits first of all
that in conducting the procedure leading up to the contested
decision the Commission infringed the principle of good
administration and disregarded essential procedural require-
ments by not granting the applicant sufficient access to the
outcome of the market test of the commitments proposed by
the parties to the concentration and by failing to make an
impartial and diligent assessment of the proposed commit-
ments when evaluating the market test.

2.4.2005

EN

Official Journal of the European Union

C 82/45

further contends that

The applicant
the Commission also
violated its duty under Article 253 EC to provide adequate
reasons for its decision, since it relied on information consid-
ered confidential and not disclosed to the applicant.

as

The applicant also invokes the fact that Portugal's gas market
‘emergent’ under Article 28(2) of Directive
qualifies
2003/55 (1) and benefits from a derogation from that directive
until April 2007. The applicant considers that by assessing the
effects of the concentration on a gas market not open to
competition, the Commission infringed the right of the Portu-
guese government to restructure the gas sector during the dero-
gation period. Further, it alleges that the Commission misap-
plied the substantive test in Article 2 of Regulation 4064/89 (2)
by purporting to evaluate the effects of the proposed concen-
tration at the end of the derogation period, several years later.

A further violation of that article as well as of the duty to state
reasons consists, according to the applicant, in the Commis-
sion's failure to assess whether the strengthening of the appli-
cant and of Gás de Portugal's dominant position in the electri-
city and gas markets would have significantly impeded compe-
tition.

proposed transaction should be declared incompatible with the
common market.

(1) Directive 2003/55/EC of

the
Council of 26 June 2003 concerning common rules for the internal
market in natural gas and repealing Directive 98/30/EC (OJ L 176
p. 57).

the European Parliament and of

(2) Council Regulation (EEC) No 4064/89 of 21 December 1989 on
the control of concentrations between undertakings (OJ L 257/90 p.
13).

Removal from the Register of Case T-131/03 (1)

(2005/C 82/79)

(Language of the case: German)

the Court of First

By order of 13 January 2005, the President of the Second
the European
Chamber of
Communities has ordered the removal from the Register of
Case T-131/03, Sinziger Mineralbrunnen GmbH v Office for
Harmonisation in the Internal Market
(Trade Marks and
Designs).

Instance of

Finally, the applicant contends that the Commission violated
Article 8(2) and 8(3) of Regulation 4064/89 by concluding
that, despite the commitments proposed by the parties, the

(1) OJ C 158 of 5.7.2003.