Case T-371/06: Action brought on 4 December 2006 — Germany v Commission
Date: 2007-02-24
Institutions: Court of First Instance
Subjects: EU aid, European Commission, European Regional Development Fund, North Rhine-Westphalia, action for annulment (EU), aid system, operational programme

C 42/24

EN

Official Journal of the European Union

24.2.2007

Pleas in law and main arguments

Action brought on 4 December 2006 — Germany v
Commission

The applicant seeks the annulment of Commission Decision
C(200) 4196 final (1) of 26 September 2006 by which the
Commission declared that a subsidy that the Netherlands condi-
tionally granted to the applicant constitutes State aid that is
incompatible with the common market.

The applicant contests that the Commission was entitled to find
that the subsidy constituted State aid incompatible with the
common market and submits that the Commission committed
infringements of Article 87 EC and a number of principles of
Community law. These infringements concern the following:

Parties

(Case T-371/06)

(2007/C 42/43)

Language of the case: German

1) Infringement of Article 87(1) EC related to a failure to estab-
lish that the subsidy constituted State aid in the sense of this
provision and a misconstruction and misapplication of Com-
munity case law on this point;

Applicant: Federal Republic of Germany (represented by: M.
Lumma, C. Schulze-Bahr, C. von Donat (lawyer))

Defendant: Commission of the European Communities

2) Infringement of Article 87(3) EC related to:

Form of order sought

a) A misconstruction and misapplication of the Community

Guidelines (2) on State aid in the agriculture sector;

b) A failure to properly balance the beneficial effects of the
subsidy and its impact on trading conditions inside the
Community;

— Annul Commission Decision C(2006) 4193 final of
25 September 2006 on the reduction of the financial contri-
bution of the ERDF under Objective 2 of the programme for
North Rhine-Westphalia (ERFD No 97.02.13.005) awarded
by Commission Decision No C(97) 1120 of 7 May 1997;

— order the Commission to pay the costs.

c) A failure to properly assess and establish the impact of

the subsidy on capacities in the malt industry;

Pleas in law and main arguments

d) A failure to take account of events and developments that
occurred between the moment the Dutch government
decided to conditionally grant
the subsidy and the
moment the Commission adopted the contested decision;

3) Infringement of the principle of sound administration related
to a failure to duly investigate all aspects and interests
involved in the granting of the subsidy, including events and
developments that occurred between the moment the Dutch
government decided to conditionally grant the subsidy and
the moment the Commission adopted its decision.

4) Infringement of the duty to state reasons as laid down in

Article 253 EC.

(1) C 14/2005 (ex N 149/2004) Holland Malt BV.
(2) Community Guidelines
(OJ 2000 C 28, p. 2).

for State aid in the agriculture sector

By the contested decision, the Commission reduced the contri-
bution of the European Regional Development Fund (ERDF)
under Objective 2 of the programme for Nordrhein-Westfalen.

its claim,

In support of
the applicant alleges breach of
Article 24(2) of Regulation No 4253/88 (1), on the ground that
the conditions for a reduction were not fulfilled. In this connec-
tion, it submits, in particular, that the deviations from the indi-
cative financing plan do not amount to a significant alteration
of the programme.

Even if the programme were significantly altered, the applicant
submits that the Commission gave its prior consent pursuant to
its ‘Guidelines for the financial closure of operational measures
(1994-1999) under the Structural Funds’ (SEK (1999) 1316).

Assuming that the conditions for a reduction are met, the appli-
cant submits that the defendant did not use its discretion in rela-
tion to the specific programme. According to the applicant, a
reduction would not amount to a misuse of powers only if it
appeared to be justified, as a whole, in the light of implementa-
tion of
the objective.
According to the applicant, as the defendant did not use this
discretion, it also failed to provide justification.

the programme and attainment of

24.2.2007

EN

Official Journal of the European Union

C 42/25

Finally, the contested decision infringes the principle of sound
administration, in that the applicant was forced by that decision
to bring a new action against a decision pending before the
courts at the time of bringing that action.

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), in as much as there is no likeli-
hood of confusion between the opposing marks.

(1) Council Regulation (EEC) No 4253/88 of 19 December 1988, laying
down provisions for implementing Regulation (EEC) No 2052/88 as
regards coordination of the activities of the different Structural Funds
between themselves and with the operations of the European Invest-
ment Bank and the other existing financial instruments (OJ 1988 L
374, p. 1).

(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 11 December 2006 — Bomba Energia
Getränke v OHIM — Eckes-Granini (Bomba)

(Case T-372/06)

(2007/C 42/44)

Language in which the application was lodged: German

Parties

Applicant: Bomba Energia Getränke Vertriebs GmbH (Wiener
Neudorf, Austria) (represented by: A. Kockläuner, lawyer)

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

Other party to the proceedings before the Board of Appeal: Eckes-
Granini GmbH & Co. KG (Nieder-Olm, Germany)

Form of order sought

— annul

in its entirety the decision of the Second Board of
Appeal of OHIM of 3 October 2006 in Appeal Case R 184/
2005-2;

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

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: The word mark ‘Bomba’ for
goods in Classes 32 and 33 (Application No 558 874).

Action brought on 13 December 2006 — Rath v OHIM —
Grandel (Epican Forte)

(Case T-373/06)

(2007/C 42/45)

Language in which the application was lodged: German

Parties

Applicant: Matthias Rath (Cape Town, South Africa) (represented
by: S. Ziegler, C. Kleiner and F. Dehn, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM:
Dr. Grandel GmbH

Form of order sought

The applicant claims that the Court should:

— set aside the decision of the First Board of Appeal of the
Office for Harmonisation in the Internal Market
(Trade
Marks and Designs) (OHIM) of 5 October 2006 in so far as
it refuses to allow the Community trade mark application in
respect of the goods in Class 5 ‘food supplements not for
medical purposes, mainly consisting of vitamins, amino
acids, minerals and trace elements; dietetic substances not
adapted for medical use, namely amino acids and trace
elements; the aforesaid goods not for use as antiepileptics’;

— order OHIM to pay the costs.

Pleas in law and main arguments

Proprietor of the mark or sign cited in the opposition proceedings:
Eckes-Granini GmbH & Co. KG.

Applicant for a Community trade mark: The applicant

Mark or sign cited in opposition: Various word and figurative
marks ‘la bamba’, including the German word mark ‘la bamba’
for goods in Classes 29, 32 and 33.

Community trade mark concerned: The word mark ‘Epican Forte’
for goods in Classes 5, 30 and 32 (Application No 2 525 251)

Decision of the Opposition Division: Rejection of the application.

Proprietor of the mark or sign cited in the opposition proceedings: Dr.
Grandel GmbH