Case T-367/05: Action brought on  23 September 2005  — UPC France v Commission
Date: 2005-12-10
Institutions: Court of First Instance
Subjects: European Commission, France, State aid, action for annulment (EU), control of State aid, public service, telecommunications, transmission network

10.12.2005

EN

Official Journal of the European Union

C 315/15

Decision of the Opposition Division: upheld the opposition and
rejected the application for registration.

Decision of the Board of Appeal: dismissed the appeal.

Pleas in law:

Infringement of the principle of continuity in terms of their
functions between the various departments of the Office for
Harmonisation in the Internal Market in that a decision that a
party appearing before the authorities ruling at first instance
which has failed to provide evidence as to matters of fact or
law within the prescribed time-limits cannot, pursuant
to
Article 74(2) of Council Regulation No 40/94 on the Com-
munity trade mark, rely on such evidence before the Board of
Appeal is contrary to that principle.

Infringement of Article 8(1)(b) of that Regulation.

Action brought on 26 September 2005 — Mische/Parlia-
ment

(Case T-365/05)

(2005/C 315/28)

Language of the case: English

— grant the award of damages with (i) Aintérêts de retard@,
compensation for his prejudice to his career, and (ii) other
damages in form of a legal and regular pay, notably the
the transitional provision contained in
application of
Article 21 of Annex XIII of the Staff Regulation in force as
of 1 May 2004 or, alternatively, the lowering of contribu-
tions to the pension scheme based on the principle of equal
pay. These rights will have to be duly evaluated at a later
stage and are now evaluated, provisionally and ex aequo et
bono, at a minimum of 10 000 euros per year;

— order that the Parliament pays all the costs.

Pleas in law and main arguments

The applicant, an official appointed after the entry into force of
the new Staff Regulations on 1st May 2004, but from a reserve
list drawn up on the basis of a competition organised before
that date, contests his appointment grade. He invokes the same
pleas and arguments he had already invoked in Case T-288/
05 (1).

(1) OJ C 229, 17/09/05, p. 35

Action brought on 23 September 2005 — UPC France v
Commission

(Case T-367/05)

(2005/C 315/29)

Language of the case: French

Parties

Applicant(s): Harald Mische (Brussels, Belgium) [represented by:
G. Vandersanden, L. Levi, lawyers]

Defendant(s): European Parliament

Parties

Applicant(s): UPC France Holding BV (Schiphol-Rijk, Nether-
lands) (represented by: M.D. Powell and N. Flandin, lawyers)

Form of order sought

Defendant(s): Commission of the European Communities

— Order the cancellation of

the grading given on the 4
October 2004 in the appointment decision of the Nomi-
nating Authority which was to take effect 16 November to
grade him on his recruitment to DG Competition as ‘junior
lawyer’ at category A*, grade 6, step 1, implying the rein-
statement of all his rights as deriving from a legal and
regular employment, i.e. a legal and regular grading as of
16 November 2004, which means at minimum an A7/3
grading (valid as of 1 November 2003) or its equivalent
according to Articles 1-11 of Annex XIII of the Staff Regu-
lations (A*8/3);

Form of order sought

The applicant(s) claim(s) that the Court should:

— annul Commission Decision State Aid No 382/2004 —

France;

— order the Commission to pay the costs.

C 315/16

EN

Official Journal of the European Union

10.12.2005

Pleas in law and main arguments

contested decision refer to the presence of
network in Limoges.

the applicant's

By the present action, the applicant requests the annulment of
Commission Decision State Aid No 382/2004 — France of 3
May 2005 (1) declaring that the subsidy granted by the French
authorities for the construction and operation of a high-
Limousin
telecommunications
throughput
(DORSAL) does not constitute aid.

network

in

In support of its action, the applicant relies on several pleas,
alleging infringement of essential procedural requirements and
infringement of Community law.

As regards infringement of essential procedural requirements,
the applicant claims that the Commission infringed its proce-
dural rights by wrongly refraining from initiating the formal
investigation procedure provided for in Article 88(2) of the EC
Treaty and Article 6 of Regulation No 659/99 (2), which would
have enabled it, as an interested party, to submit comments
before the Commission took the decision.

By its first plea, relating to infringement of Community law,
the applicant claims that the Commission made a manifest
error of assessment by considering that the measure in question
did not contain aid because the subsidy had been granted in
connection with compensation for public service and the
criteria set out in the decision in Altmark (3) had been fulfilled
in this case.

Moreover, the applicant challenges the contested decision inas-
much as it classifies the high output service as public service,
when the definition of public service in relation to telecommu-
nications, according to the ‘universal service’ directive, covers
only low-throughput services.

The applicant then submits that if the obligations at issue must
be regarded as a public service task, which they are not, the
Commission made a manifest error of assessment by taking the
view that, in the city of Limoges, there is a shortage of private
initiative and absence of competitive forces. It also claims that
the procedure used to choose the operator responsible for
carrying out a supposed service task in the general interest did
not make it possible to select the candidate able to provide the
service at the lowest cost for the community. In any event,
according to the applicant, in this case and as far as the city of
Limoges is concerned the public subsidy cannot be justified as
compensation for the carrying out of a public service task and
Altmark cannot therefore apply.

By its next plea, the applicant also relies on substantial proce-
dural irregularities in the procedure for delegation of the public
service task which meant
the potential candidates for
that
public service delegation were not accorded equal treatment.

The final plea raised by the applicant alleges a failure to give
sufficient reasons, since the Commission did not explain why it
took into consideration the region of Limousin as a whole
without taking account of the particular features of urban areas
which, like the city of Limoges, present real pockets of compe-
tition within the region, nor why it did not at any time in the

(1) C (2005) 1170 final 1.
(2) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article 93 of the EC
Treaty, OJ 1999 L 83 of 27.03.1999, p. 1.

(3) Case C-280/00 [2003] ECR I-7747.

Action brought on 30 September 2005 — France v
Commission

(Case T-370/05)

(2005/C 315/30)

Language of the case: French

Parties

Applicant(s): French Republic (Paris, France) (represented by: G.
de Bergues and A.Colomb, Agents)

Defendant(s): Commission of the European Communities

Form of order sought

The applicant(s) claim(s) that the Court should:

— annul Commission Decision C (2005) 2756 final of 20 July
2005 excluding from Community financing certain expen-
diture incurred by the Member States under the Guarantee
Section of the European Agricultural Guidance and Guar-
antee Fund (EAGGF), in so far as it excludes from Com-
munity financing the sum of EUR 13 519 122,05 in
respect of a correction relating to determination of the
areas eligible for aid for restructuring and reconversion of
vineyards for the 2001-2003 financial year;

— order the defendant to pay the costs.

Pleas in law and main arguments

By the contested decision which is the subject-matter of these
proceedings, the Commission made a decision on clearance of
the applicant's accounts in the wine sector of an amount corre-
to be excluded from Community
sponding to the amount
financing on account of, first, a correction for exceeding new
planting rights and,
secondly, a correction made by the
Commission in respect of the areas declared eligible by France
for reconversion/restructuring aid and the areas considered
eligible for such aid by the Commission for the marketing
years 2000-2001 and 2001-2002. Only the second part of the
decision at issue, concerning the correction relating to the
discrepancy in area, is challenged by the applicant.