Case T-416/05: Action brought on  25 November 2005  — Olympic Airlines S.A. v Commission
Date: 2006-03-11
Institutions: Court of First Instance
Subjects: European Commission, Greece, State aid, action for annulment (EU), air transport, control of State aid, redemption

11.3.2006

EN

Official Journal of the European Union

C 60/39

Order of the Court of First Instance of 13 December 2005
— Arla Foods and Others v Commission

Action brought on 25 November 2005 — Olympic
Airlines S.A. v Commission

(Case T- 397/02) (1)

(Regulation (EC) No 1829/2002 — Registration of a desig-
nation of origin ‘Feta’ — Action for annulment — Capacity
to bring proceedings — Inadmissibility)

(Case T-416/05)

(2006/C 60/77)

Language of the case: Greek

(2006/C 60/76)

Language of the case: Danish

Parties

Parties

Applicants: Arla Foods AMBA (Viby, Denmark), Løgismose A/S
(Broby, Denmark), Nordex Food A/S (Dronninglund, Denmark),
Sinai Landmejeri
(Hobro,
(Horsens, Denmark), Steensgaard
Denmark), Søvind Mejeri
Herregårdsmejeri (Millinge, Denmark), Mejeriet Grambogård I/S
(Tommerup, Denmark) and Kirkeby Cheese Export (Svendborg,
Denmark), (represented by G. Lett, lawyer)

(Broby), Andelsmejeriet Sædager

Defendant: Commission of the European Communities (repre-
sented by H. Støvlbæk,
and A.-M.
Rouchaud-Joët, Agents)

Iglesias Buhigues

J.

Interveners in support of the applicants: United Kingdom of Great
Britain and Northern Ireland (represented by P. Ormond,
Agent)

Intervener: in support of the defendant: Hellenic Republic (repre-
sented by V. Kontolaimos, I. Chalkias and M. Tassopoulou,
Agents) and Syndesmos Ellinikon Viomichanion Galaktoko-
mikon Proïonton (SEV-GAP) (represented by N. Korogiannakis,
lawyer)

Application for

annulment of Commission Regulation (EC) No 1829/2002 of
14 October 2002 amending the Annex to Regulation (EC) No
1107/96 with regard to the name ‘Feta’ (OJ 2002 L 277 p. 10)

Operative part of the Order

1. The action is dismissed as inadmissible.

2. The applicants shall bear their own costs and pay those of the

Commission.

3. The Hellenic Republic, the United Kingdom of Geat Britain and
Northern Ireland and Syndesmos Ellinikon Viomichanion Galak-
tokomikon Proïonton (SEV-GAP) shall bear their own costs.

(1) OJ C 70, 22.3.2003.

Applicant: Olympic Airlines S.A. (Athens, Greece) (represented
by: V. Christianos)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

— annul Article 1(1) and (4) and Article 2 of Decision C

11/2004 in so far as they concern the applicant;

— order the Commission to pay the costs.

Pleas in law and main arguments

In the context of the privatisation of the Greek State airline
company, Olympic Airways, the applicant was put into opera-
tion. It constitutes a new company, and undertook flight opera-
tions, while Olympic Airways — Services S.A. (‘OA’), as the old
company was renamed, retained all the other activities, princi-
pally ground handling, maintenance and repair of aircraft. By
the contested decision, the Commission found that State aid
had been paid by Greece to the applicant and OA, that aid
being incompatible with the Treaty inter alia on the ground of:

payment on the part of the applicant for the subleasing of
aircraft of rental lower than the lease payment under the prin-
cipal leasing agreement, at the expense of the Hellenic Republic
and OA;

— overvaluing of the applicant's assets at the time that it was

set up;

— the Hellenic Republic's display of unceasing tolerance
towards OA as regards tax debts and social security contri-
butions.

— In its application, the applicant challenges, first, the part of
the decision relating to the aircraft rental which it pays. It
maintains that there is no State aid and that consequently
the contested decision infringes Article 87(1) EC. According
to the applicant, the Commission did not examine OA's
choice to sublease aircraft on the basis of the criterion of a
private businessman, nor did it examine whether the appli-
cant obtained any benefit which it would not have obtained
on the basis of market conditions. Moreover, it committed
a manifest error of assessment in comparing the rental paid
by the applicant with that paid by OA under the principal
leasing agreement, rather than with that which the appli-
cant would have to pay if it turned to another lessor.

C 60/40

EN

Official Journal of the European Union

11.3.2006

The applicant relies on similar arguments as regards the part of
the contested decision that concerns the case of aircraft under
the leasing system. Specifically on that point, the applicant
relies inter alia again on manifest error of assessment and on
the
the fact
applicant had entered into leasing agreements, whereas,
it
maintains, it had entered only into subleasing operation agree-
ments.

the Commission wrongly considered that

that

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal: Fujitsu
Siemens Computers GmbH (Munich, Germany)

The applicant also relies on a defective statement of reasons, as
regards all the above findings of the Commission.

Form of order sought

As regards the part of the decision which leads to the conclu-
sion that the applicant constitutes OA's successor, the applicant
claims that the Commission has made an error of assessment,
since it did not take account of the fact that OA's activity
continued, that there is no interdependence between the two
companies and that a privatisation process is underway. The
applicant also relies on a defective statement of reasons,
because the Commission did not examine the criterion of the
in the applicant's
commercial
view, required the splitting off of the flights branch of OA, the
creation of a new company and, subsequently, sale to the
private sector

logic of the operation, which,

In connection with the finding in the contested decision of
‘unceasing tolerance’ on the part of Greece towards OA, the
applicant claims infringement of Community law as regards the
definition of State aid, because the Commission did not
examine the conduct of Greece in the light of the criterion of a
private creditor. It also claims that there are defects in the state-
ment of reasons required and infringement of the principle of
proportionality, in so far as the contested decision requires the
applicant to return all unlawful aid granted up to the time it
was split off, despite the fact that those amounts related to all
the activities of the old company, most of which OA continues
to carry out, while the applicant merely provides air transport
services.

— Order that Decision No 1068/2004 of the First Board of
Appeal of
the Office of 14 September 2005 (Case R
1068/2004-1) be annulled and that the applicant's opposi-
tion to Community trade mark application No 2 190 627
in opposition proceedings No B 502 148 be allowed in its
entirety, and;

— Order that the Office pay the applicant's costs.

Pleas in law and main arguments

Applicant for the Community trade mark: Fujitsu Siemens Compu-
ters GmbH

Community trade mark concerned: The word mark ‘ACTIVY Media
Gateway’ for goods and services in classes 9, 35, 38 and 42 —
application No 2 190 627

Proprietor of the mark or sign cited in the opposition proceedings:
The applicant

Mark or sign cited: The national and Community word marks
and figurative marks ‘GATEWAY’,
‘GATE-
WAY.NET’, ‘GATEWAY PROFILE’ and ‘GATEWAY ASTRO’ for
goods and services in classes 9, 16, 35, 36, 37 and 38

‘GATEWAY 2000’,

Action brought on 6 December 2005 S Gateway/OHIM

Decision of the Opposition Division: Opposition rejected in its
entirety

(Case T-434/05)

(2006/C 60/78)

Language in which the application was lodged: English

Parties

Applicant: Gateway Inc. (Irvine, USA) [represented by: C. Jones,
P. Massey, Solicitors]

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) and Article 8(5) of
Council Regulation No 40/94 as the Board of Appeal defined
the relevant consumers wrongly and erred in the assessment of
the trade mark applied for. Further the applicant claims that
the Board of Appeal disregarded the reputation and well-
known character of the earlier marks and that, contrary to
what the Board of Appeal held, the earlier marks are similar to
the mark applied for.