Case T-231/06: Action brought on 30 August 2006 — Kingdom of the Netherlands v Commission
Date: 2006-08-30
Institutions: Court of First Instance
Subjects: European Commission, Netherlands, State aid, action for annulment (EU), broadcasting, public sector

28.10.2006

EN

Official Journal of the European Union

C 261/21

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

Action brought on 29 August 2006 — REWE-Zentral v
OHIM (Port Louis)

Other party to the proceedings before the Board of Appeal of OHIM:
Anheuser-Busch Incorporated

(Case T-230/06)

(2006/C 261/40)

Language of the case: German

Form of order sought

Parties

— annul

the contested decision of 14 June 2006 of

the

Second Board of Appeal of OHIM;

Applicant: REWE-Zentral AG (Cologne, Germany) (represented
by M. Kinkeldey and A. Lehmann, lawyers)

— reject the application for registration of the word mark
‘BUD’ No 1 603 539 to designate goods in Classes 32 and
33;

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

— send the decision of the Court of First Instance to OHIM;

Form of order sought

— order Anheuser-Busch to pay all the costs and expenses.

Pleas in law and main arguments

— annulment of the decision of the First Board of Appeal of
the Office for Harmonisation in the Internal Market (Trade
Marks and Designs) of 21 June 2006 — Case R 25/2006-1
— with regard to Community trade mark application no.
003 664 133 PORT LOUIS;

— order the defendant to pay the costs.

Applicant for a Community trade mark: Anheuser-Busch Incorpo-
rated

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘BUD’ for goods in
Classes 32 and 33 — Application No 1 603 539

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

Mark or sign cited in opposition: Protected designation of origin
‘BUD’ to designate beer

Decision of the Opposition Division: Rejection of the opposition

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 62(1) of Regulation No
40/94 (1) and Article 20 of
implementing Regulation No
2868/95 (2) in that the Board of Appeal is not competent to
rule on the validity of the designation of origin invoked by the
applicant in the context of its opposition. It also submits that
the sign ‘BUD’ constitutes a designation of origin, protected in
both France and Austria. The applicant moreover invokes
misapplication of Article 8(4) of Regulation No 40/94 in that,
in its view, the designation of origin ‘BUD’ is indeed a sign
used in the course of trade.

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

Community trade mark (OJ 1994 L 11, p. 1)

(2) Commission Regulation (EC) No 2868/95 of 13 December 1995
implementing Council Regulation (EC) No 40/94 on the Com-
munity trade mark (OJ 1995 L 303, p. 1)

Community trade mark concerned: The word mark ‘Port Louis’ for
goods in Classes 18, 24 and 25 (application no. 366 4133).

Decision of the Examiner: Rejection of the application.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regu-
lation (EC) No 40/94 (1) as the mark for which registration is
sought is capable of registration. Furthermore, the applicant
submits that the right to a fair hearing has been infringed.

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

Community trade mark (OJ 1994 L 11, p. 1).

Action brought on 30 August 2006 — Kingdom of the
Netherlands v Commission

(Case T-231/06)

(2006/C 261/41)

Language of the case: Dutch

Parties

Applicant: Kingdom of the Netherlands (represented by: H.G.
Sevenster and D.J.M. de Grave, Agents)

Defendant: Commission of the European Communities

C 261/22

EN

Official Journal of the European Union

28.10.2006

Form of order sought

— Annul Commission Decision C(2006) final of 22 June 2006
concerning the ad hoc measures implemented by the Neth-
erlands for the purpose of financing public broadcasters in
the Netherlands in relation to the State aid case No
C 2/2004 (ex NN 170/2003), with the exception of Article
1(3) thereof;

— Order the Commission to pay the costs.

applicant, however, the Commission thereby based itself on the
presumption that this amount was still retained by the NOS as
a reserve, whereas in fact it had already been spent to a large
degree, in accordance with the applicable conditions.

The Commission also established that the amount in reserves
which the separate broadcasters had transferred to the NOS
had to be recovered in full. The applicant submits that, in so
doing, the Commission, without giving reasons, departed from
its established conduct of allowing overcompensation of up to
10 %.

Pleas in law and main arguments

The applicant first alleges a breach of Article 88(2) EC and of
the rights of the defence by reason of the fact that, in its deci-
sion, the Commission has substantially departed from the deci-
sion of 3 February 2004 (1) by which it initiated the formal
investigation. The applicant goes on to submit that the subject-
matter of the investigation and the method of calculation for
determining the excess compensation have been altered.

Secondly, the applicant claims that there has been a breach of
Article 88(1),
(2) and (3) EC, of Article 1(b) of Regulation
No 659/1999 (2) and Article 253 EC on the ground that the
Commission incorrectly construed and applied the concepts of
new aid and existing aid.

The applicant submits that the Commission erred in classifying
payments from specific funds and reserves as new aid. By so
doing, it argues, the Commission failed to take account of the
fact that such payments, in the same way as ordinary payments
to public broadcasters, constitute part of media budget and do
not amount to additional public funds. The applicant argues
that the only difference, namely that these payments are made
available for specific purposes, does not amount to a reason for
distinguishing these payments from the rest of public finan-
cing.

The applicant goes on to submit that the Commission incor-
rectly applies the notion of existing aid by classifying as new
aid to the NOS the repayment of part of the reserves of the
separate public regional broadcasters to a coordinating body,
the NOS. According to the applicant, the reserves in question
arose from the annual financing, which constitutes existing aid,
and did not lose their character as existing aid simply by
reason of the transfer to the NOS.

By way of alternative submission, the applicant alleges a breach
of Article 86(2) EC, a manifest misappraisal of the facts, and a
breach of Article 253 EC by reason of the manner in which the
Commission calculated the overcompensation of
the public
broadcasters.

According to the applicant, the Commission was wrong to
decide that the financing failed to comply with the principle of
proportionality. The applicant states that the Commission had
initially established that the financing did not lead to distortions
of competition on commercial markets. There can for that
reason be no question, the applicant submits, of overcompensa-
tion and no reimbursement is therefore necessary.

The Commission also fixed the amount to be claimed back
from the NOS's Broadcasting Reserve Fund. According to the

(1) OJ 2004 C 61, p. 8.
(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 L 83, p. 1).

Action brought on 28 August 2006 — Eyropaïki Dynamiki
v Commission

(Case T-232/06)

(2006/C 261/42)

Language of the case: English

Parties

Applicant: Eyropaïki Dynamiki — Proigmena Systimata Tilepi-
koinonion Pliroforikis kai Tilematikis AE (Athens, Greece)
(represented by: N. Korogiannakis and N. Keramidas, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annulment of the decision of DG TAXUD to evaluate the
applicant's bid as not successful and award the contract to
the successful contractor;

— order DG TAXUD to pay the applicant's legal and other
costs and expenses incurred in connection with this appli-
cation, even if the current application is rejected;

— order DG TAXUD to pay applicant's damages suffered on

account of the tendering procedure in question.

Pleas in law and main arguments

By means of its application, the applicant seeks annulment of
DG TAXUD's decision of 19 June 2006, rejecting its bid filed
in response to the open Call for Tenders TAXUD/2005/AO-
001 for specification, development, maintenance and support
of customs IT services relating to projects of the DG-TAXUD
‘CUST-DEV’ (OJ 2005/S 117-115222) and awarding the same
Call for Tender to another bidder.