Case T-11/07: Action brought on 12 January 2007 — Frucona Košice v Commission
Date: 2007-01-12
Institutions: Court of First Instance
Subjects: European Commission, Slovakia, State aid, action for annulment (EU), control of State aid, tax debt write-off

C 56/36

EN

Official Journal of the European Union

10.3.2007

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘FVB’ for services
in Classes 35 and 36 (Application No 2 126 175).

Proprietor of the mark or sign cited in the opposition proceedings:
FVD Gesellschaft für Finanzplanung und Vorsorgemanagement
Deutschland mbH.

Mark or sign cited in opposition: The German word mark ‘FVD’ for
services in Class 36, the opposition being brought against the
registration in Class 36.

Decision of the Opposition Division: Opposition granted, partial
rejection of the application.

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

Pleas in law: The contested decision infringes Article 8(1)(b) of
Regulation (EC) No 40/94 (1) since there is no likelihood of
confusion between the opposing marks.

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

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

Action brought on 12 January 2007 — Frucona Košice v
Commission

(Case T-11/07)

(2007/C 56/68)

Language of the case: English

Parties

Applicant: Frucona Košice a.s. (Košice, Slovak Republic) (repre-
sented by: B. Hartnett, O. Geiss, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul Commission's Decision C(2006)2082 final, of 7 June

2006, in state aid Case No C25/2005;

— annul in whole or in part Article 1 of the said decision;

— order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

By means of its application, the applicant seeks annulment of
the Commission decision of 7 June 2006 on state aid imple-

mented by the Slovak Republic for the applicant (C25/2005),
insofar as it treats the applicant as a recipient of incompatible
state aid and compels it to repay to the Slovak Republic the
entirety of the tax write-off with interest.

In support of its action, the applicant relies on the following ten
pleas in law:

By its first plea, the applicant claims that the Commission mani-
festly erred when determining the amount of the alleged state
aid.

By its second plea, the applicant submits that the contested deci-
sion violates an essential procedural requirement and fails to
have regard to Article 33 EC. In fact, the applicant contends it is
DG Agriculture and not DG Competition which was the compe-
tent directorate to carry out
the investigation and take the
procedural and formal steps that led to the contested decision.

By its third plea, the applicant further submits that the contested
decision violates Section 3, Annex IV of the Treaty of Accession,
Article 253 EC, Article 88 EC and Regulation 659/1999
because the Commission lacked jurisdiction to issue the
contested decision.

By its fourth plea, the applicant contends that the Commission
has erred in fact and in law in applying Article 87(1) EC when
it found bankruptcy proceedings to be more favourable than the
tax settlement.

By its fifth plea, the applicant alleges that the Commission
further erred by finding the tax execution procedure to be more
beneficial than the tax settlement.

By its sixth plea, the applicant submits that the Commission
manifestly erred in law and in fact by failing to discharge the
burden
EC
and Article 253 EC. In addition, the applicant submits that the
Commission disregarded the legal standards set forth by the
Court on the application of the private creditor test.

violating Article

thereby

proof

87(1)

of

By its seventh plea, the applicant claims that the Commission
erred in law and fact by failing to adequately assess and have
regard to the evidence at its disposal.

By its eighth plea, the applicant alleges that the Commission
erred in law and in fact by taking into account
irrelevant
evidence such as internal differences within the tax administra-
tion.

By its ninth plea, the applicant further submits that the decision
violates Article 253 EC by lacking sufficient reasoning to justify
its conclusions.

Lastly, by its tenth plea, the applicant alleges that the Commis-
sion erred by not exempting the tax settlement as restructuring
aid and by retroactively applying the 2004 Restructuring Guide-
lines.