Case T-423/05: Action brought on  25 November 2005  — Olympic Airways Services S.A. v Commission of the European Communities
Date: 2006-03-25
Institutions: Court of First Instance
Subjects: European Commission, Greece, State aid, action for annulment (EU), air transport

25.3.2006

EN

Official Journal of the European Union

C 74/21

Form of order sought

The applicant claims that the Court should:

Action brought on 25 November 2005 — Olympic
Airways Services S.A. v Commission of the European
Communities

— declare that

the Commission could not

terminate the

contract of 30 August 2005;

— order

the European Commission to pay the sum of
interest since 12

EUR 125 906, plus statutory default
February 2002;

(Case T-423/05)

(2006/C 74/42)

Language of the case: Greek

— order the Commission to pay all the costs of the proceed-

ings.

Parties

Pleas in law and main arguments

The applicant is party to Contract BU 209-95 concluded with
the Commission in consequence of the invitation to tender in
connection with the specific programme for research and tech-
nological development in the field of non-nuclear energy (1)
and covering the execution of a project of renovation of a
building in Lyon by using solar and bio-climatic architecture
methods. The contract contains an arbitration clause under
which the Community judicature has exclusive jurisdiction over
disputes between the contracting parties as regards the validity,
application and interpretation of the contract.

In execution of its contractual obligations, the applicant, on 12
December 2001, sent the Commission the final report on the
project. The Commission did not accept that report and on 5
July 2002 served on the applicant a decision to recover
payments made by refusing to accept certain costs declared by
it in that report. Neither exchanges of correspondence between
the parties, nor the meetings held, nor the intervention of a
mediator could bring about an amicable settlement of
the
dispute. By registered letter of 30 August 2005, the Commis-
sion served the applicant with a final
recovery decision
preceded by a debit note of 23 August 2005. That decision is
the subject of this action brought by the applicant on the basis
of the arbitration clause.

The action seeks, principally, an order that the Commission
pay 20 % of the balance of the subsidy allegedly due to the
applicant under Contract BU 209-95.

In support of its claims, the applicant argues that any disagree-
ment with the way the project was executed by the contracting
parties should have been expressed by the Commission before
the date on which the report was presumed to have been
approved (two months from the date of deposit of the final
report). In the applicant's view, the Commission is time-barred
and cannot therefore constitute itself a creditor of the applicant.
Consequently, being time-barred,
the Commission remains
indebted to the applicant for the balance of the subsidy which
it undertook to pay under the contract in question.

(1) Programme put in place by Council Decision 94/806/EC of 23

November 1994 (OJ L 334 of 22 December 1994, p. 87).

Applicant: Olympic Airways Services S.A.
(Athens, Greece)
(represented by: P. Anestis, T. Soames, D. Geradin, S. Mavro-
ghenis and S. Jordan, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

— annul in whole or in part, in accordance with Articles 230
and 231 EC, Decision C11/2004, concerning State aid
alleged to have been granted by Greece to Olympic
Airways Services S.A.;

— order the Commission to pay the costs.

Pleas in law and main arguments

When the Greek state airline Olympic Airways was privatised,
a new company (‘NOA’) began operating, taking over the flight
operations, while the applicant (‘OA’) retained all other activ-
ities, principally ground handling, maintenance and aircraft
repair. In the contested decision, the Commission found that
Greece had granted to NOA and the applicant State aid that
was incompatible with the Treaty, inter alia by reason of:

— overvaluation of NOA's assets at the time when it was set

up,

— the making by the Greek State, as guarantor, of payments

in respect of debts of OA,

— the continuous forbearance displayed by the Greek State
towards OA with regard to tax debts and social security
contributions.

By its action, the applicant contests first of all the part of the
decision that relates to the supposed overvaluation of NOA's
assets when it was set up. The applicant pleads infringement of
Article 87(1) and (3) EC and Article 253 EC (duty to state
reasons). It submits that the ‘private investor’ test was misap-
plied since the Hellenic Republic acted as any well-advised
private businessman would act. It further contends that metho-
dology and conclusions were mistaken in relation to the calcu-
lation of the amount of the supposed benefit. It also argues
that the reasoning with regard to fulfilment of the conditions
required in order for Article 87(1) EC to apply was deficient.

C 74/22

EN

Official Journal of the European Union

25.3.2006

So far as concerns the payment of sums by the State in respect
of its debts, the applicant does not dispute that those payments
were made, but considers that they do not involve elements of
State aid and pleads in this regard that Article 87(1) EC has
been infringed. More specifically,
the applicant pleads that
continuance of State aid, of which those payments by the
Greek State form part, had been accepted by the Commission,
and by the contested decision the Commission argues the
In the same
contrary under a mistaken legal assessment.
context, the applicant contends that the Commission manifestly
erred in its assessment in relation to the payments that were
made before the alteration of certain guarantees and to the clas-
sification of certain payments by the State as State aid. The
applicant also pleads, in relation to this part of the decision
too, infringement of an essential procedural requirement, that
is to say of the duty to state reasons.

In relation to the finding in the contested decision that Greece
displayed ‘continuous forbearance’ towards OA, the applicant
submits that Community law was infringed as regards the
meaning of State aid, because the Commission did not examine
Greece's conduct in the light of the ‘private creditor’ test and
failed to satisfy the burden of proof. It further pleads that there
was a manifest error of assessment in relation to the calculation
and the quantification of the supposed benefit and that the
reasons stated were insufficient.

Finally, the applicant pleads infringement of general principles
of Community law, that is to say, first of all, the right to be
heard, which it considers to have been infringed because of the
Commission's refusal to grant the Hellenic Republic, and by
extension the applicant itself as a directly affected party, access
to the findings drawn up by a firm of auditors appointed by
the Commission. The applicant further pleads infringement of
the principle ‘non bis in idem’ because the contested decision
has imposed interest, on the basis of the Community rate of
interest, on the sums of aid which must be recovered, but the
latter already include fines, interest and additional charges on
the basis of the national provisions.

Other party/parties to the proceedings before the Board of Appeal:
Kaminomoto Co. Ltd. (Hyogo-Ken, Japan)

Form of order sought

— Annul the decision of the First Board of Appeal of OHIM

dated 15 September 2005 in case R 1143/2004-1;

— order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘AJINO-
MOTO’ for goods in classes 1, 5, 29, 30 and 31 — application
No 1 307 024

Proprietor of the mark or sign cited in the opposition proceedings:
Kaminomoto Co. Ltd.

Mark or sign cited: The national word mark ‘KAMINOMOTO’
for goods in class 3

Decision of the Opposition Division: Rejection of the opposition
in its entirety

Decision of the Board of Appeal: Annulment of the Opposition
Division's decision

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94 since the Board of Appeal according to the
applicant held that the opponent in the opposition proceedings
only had to prove the existence of an earlier right at the time
of the filing of the opposition. According to the applicant it is
the time of the decision of the Opposition Division, or alterna-
tively when the time-limit
for providing further evidence
expires, by which an earlier right has to be proven to be in
force.

Action brought on 12 December 2005 — Ajinomoto/
OHIM

Action brought on 13 December 2005 — Royal Bank of
Scotland/OHIM

(Case T-436/05)

(2006/C 74/43)

Language in which the application was lodged: English

Parties

Applicant: Ajinomoto Co., Inc. (Tokyo, Japan) [represented by:
G. Würtenberger and R. Kunze, lawyers]

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

(Case T-439/05)

(2006/C 74/44)

Language in which the application was lodged: English

Parties

Applicant: The Royal Bank of Scotland Group plc (Edinburgh,
United Kingdom) [represented by: J. Hull, Solicitor]

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

Other party/parties to the proceedings before the Board of Appeal:
Lombard Risk Systems Limited and Lombard Risk Consultants
limited (London, United Kingdom)