Case T-200/06: Action brought on 26 July 2006 — IBERDROLA v Commission of the European Communities
Date: 2006-09-30
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), dominant position, economic concentration, energy industry, merger control, restriction on competition

30.9.2006

EN

Official Journal of the European Union

C 237/9

Pleas in law and main arguments

Form of order sought

The applicants contest Article 1 of Commission Decision
C (2006) 641 final of 8 March 2006, by which the Commis-
sion decided that the State aid awarded by Germany to Schie-
fergruben Magog GmbH & Co. KG, a competitor of the appli-
cants,
in
accordance with Article 87(3)(c) EC.

is compatible in part with the common market

— Annul the contested decision;

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

ings.

The applicants took part in the Commission's formal verifica-
tion procedure.

Pleas in law and main arguments

In support of their claim, the applicants allege infringement of
Commission Regulation (EC) No 70/2001 of 12 January 2001
on the application of Articles 87 and 88 of the EC Treaty to
State aid to small and medium-sized enterprises (OJ 2001 L 10,
p. 33) in the version amended by Commission Regulation (EC)
No 364/2004 of 25 February 2004 (OJ 2004 L 63, p. 22).

In the applicants' view, there is eligibility for aid under Articles
5a and 5b of Regulation No 70/2001 only if the new produc-
tion process, the implementation of which was assisted by the
aid, is a precompetitive development. They submit that that is
not the case in the present situation, since the prototype for
which aid was granted is not innovative.

Furthermore, the applicants submit in support of their claim
that there is here no eligibility for aid under Article 4 of Regu-
lation No 70/2001. There is eligibility only where the produc-
tion process receiving aid is significantly changed from the
previous production process. That precondition is not met in
this case since the working procedure in the production
process has remained the same.

Action brought on 26 July 2006 — IBERDROLA v
Commission of the European Communities

(Case T-200/06)

(2006/C 237/17)

Language of the case: Spanish

Parties

IBERDROLA S.A.

(represented by:
Applicant:
J. Alfaro Aguila-Real, P. Liñán Hernández, S. Martínez Lage,
H. Brokelmann and J. Ruiz Calzado, lawyers)

(Bilbao, Spain)

Defendant: Commission of the European Communities

The present action is directed against the Decision of the Euro-
pean Commission of 25 April 2006 (Case No COMP/M.4110
— E.ON/ENDESA) declaring compatible with the common
market
the concentration whereby E.ON AG proposes to
acquire control of the whole of the shares in ENDESA SA.

The applicant claims in that regard that,
in its opinion, the
contested decision disregards the serious risks that coordinated
effects will be produced in the relations of competition
between the principal operators with a pan-European presence,
which must be examined in a transaction of this magnitude
and having these characteristics, that it affects the dominant
undertakings in two of the main national energy markets.

In support of its claims, the applicant maintains that the defen-
dant has:

— infringed the principle of sound administration by carrying
out a biased and inadequate investigation of the operation
of the affected markets and of the impact of the transaction
in those markets;

— made an error of law by basing its examination of the
transaction on a consideration of
the national markets,
contrary to the Merger Regulation and the Community
case-law;

— failed to fulfil its obligation to ensure the coherent applica-
tion of the rules on the control of concentrations and the
abuse of a dominant position in examining the notified
transaction, authorising it without having examined the
origin of the funds which E.ON proposed to use for the
acquisition of ENDESA, in order to determine whether such
a concentration could be the result of an abuse of a domi-
nant position;

— made a series of manifest errors of assessment and ignored
certain relevant elements by concluding that the compat-
ibility of the transaction does not raise serious doubts and
adopting the decision authorising it in Phase 1. The appli-
cant emphasises
regard that, although it was
adopted on the basis of the new Merger Regulation, which
requires a more sophisticated and rigorous analysis, the
contested decision:

in that

— wholly ignores the negative impact which the transac-
tion will have on the process of the integration of the
national wholesale markets, which will culminate in the
completion of the single European market in gas and
electricity,

— did not sufficiently evaluate the impact of the proposed
transaction on the emergent pan-European market for
the supply of electricity to multinational undertakings,

C 237/10

EN

Official Journal of the European Union

30.9.2006

— considers that,

in spite of its pan-European objective
and its economic strength, E.ON was not a significant
potential competitor of ENDESA in the Spanish markets
for electricity generation and the supply of gas,

— concludes that the transaction will not strengthen a
dominant position in the German market and that the
disappearance of a recent entrant, ENDESA, does not
alter the competitive context.

Finally the applicant claims that there has been a breach of the
duty to state the reasons on which measures are based.

Decision of the Cancellation Division: Declaration of invalidity of
the Community trade mark.

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

Pleas in law: Breach of Article 8(1)(b) of Regulation (EC) No
40/94 (1), since it is not established that there is a likelihood of
confusion between the conflicting trade marks.

(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 31 July 2006 — NewSoft Technology v
OHIM — Soft (Presto! BizCard Reader)

(Case T-205/06)

(2006/C 237/18)

Language in which the application was lodged: German

Action brought on 11 August 2006 — Bowland Dairy
Products v Commission

(Case T-212/06)

(2006/C 237/19)

Language of the case: English

Parties

Applicant: NewSoft Technology Corporation (Taipei, Taiwan)
(represented by: M. Dirksen-Schwanenland, lawyer)

Parties

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

Applicant: Bowland Dairy Products Limited (Nelson, United
Kingdom) (represented by: J. Milligan, Solicitor)

Other party/parties to the proceedings before the Board of Appeal of
OHIM: Soft, S.A.

Defendant: Commission of the European Communities

Form of order sought

— Annulment of the decision of the Second Board of Appeal
of the Office for Harmonisation in the Internal Market of
19 May in Case R 601/2005, notified on 30 May 2006;

— Rejection of the application for a declaration of invalidity of
the registration of European Community trade mark No
002625457 ‘Presto! BizCard Reader’ made by Soft, S.A.,
Spain.

Form of order sought

— Annulment of the contested decision;

— order the Commission to pay damages to the applicant in
the amount of the loss suffered by the applicant as a result
of the contested decision, with interest;

— order the Commission to pay the applicant's costs of these

proceedings.

Pleas in law and main arguments

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of
invalidity has been sought: ‘Presto! BizCard Reader’ for goods and
services in Classes 9, 16 and 42 (Community trade mark No
2625457).

Proprietor of the Community trade mark: The applicant.

Applicant for the declaration of invalidity: SOFT, S.A.

Trade mark right of applicant for the declaration: Spanish figurative
marks ‘Presto’ for goods and services in Classes 9 and 42.

By means of its application, the applicant seeks annulment of a
decision of
the Commission of the European Communities
contained in an email to the UK Foods Agency dated 20 July
2006, forwarded to the applicant on 21 July 2006, refusing to
circulate, under the Rapid Alert System for Food and Feed
provided for by Regulation (EC) No 178/2002 of the European
Parliament and of the Council of 28 January 2002 (OJ L 31 of
1 February 2002, p. 1-24), an additional notification declaring
that the Food Security Agency (FSA) was content for the appli-
cant's curd cheese to be marketed, unless conditions specified
by the Commission were met.