Case T-96/07: Action brought on 23 March 2007 — Telecom Italia Media v Commission
Date: 2007-05-26
Institutions: Court of First Instance
Subjects: State aid, action for annulment (EU), audiovisual equipment, broadcasting, financing, high-definition television

C 117/32

EN

Official Journal of the European Union

26.5.2007

Pleas in law and main arguments

In 2004 the applicant filed a complaint with the Commission
claiming among others that different aspects of the financement
of a new nuclear power plant under construction in Finland was
state aid that had not been notified. In 2006, the Commission
split
the file into two cases numbered NN 62/A/2006 and
NN 62/B/2006.

the applicant seeks the annulment of
In the present case,
Commission Decision C(2006) 4963 final, which concerns state
aid Case NN 62/B/2006, by which the Commission found that a
credit facility granted by a consortium of five banks and a loan
granted by AB Svensk Exportkredit (‘SEK’) did not constitute aid
within the meaning of Article 87(1) EC.

The applicant submits that the Commission's split of the file
into two separate cases is unlawful from a procedural as well as
a substantive point of view. According to the applicant, it was
only possible to give the credit facility and the loan at such a
low interest
rate because of a guarantee from the French
export credit insurance agency COFACE. However, the state aid
aspects of COFACE's
involvement were dealt with under
Case NN 62/A/2006. The applicant therefore claims that the
splitting up of the file into two separate cases thus taking the
guarantee element out of Case NN 62/B/2006 lead the Commis-
sion to the misunderstanding that the granting of the credit
facility and the SEK loan at such a low interest rate could not
constitute state aid simply because the participating banks were,
according to the Commission, privately owned.

Moreover, the applicant submits that even disregarding the guar-
antee from COFACE the credit
facility as well as the loan
granted by SEK constitutes state aid since:

— the credit facility was granted at a low interest rate with the
participation of the banks BLB and BNP Paribas, which the
applicant alleges are both public banks; and

— the loan from SEK was given by a 100 % state owned bank

at an interest rate below market conditions.

Finally, the applicant invokes a lack of reasoning and a manifest
error of assessment.

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

Other party to the proceedings before the Board of Appeal: Altana
Pharma AG (Konstanz, Germany)

Form of order sought

— Annul the decision of the Fourth Board of Appeal OHIM
dated 8 February 2007 Case R 302/2005-4 and confirm the
decision of the Opposition Division of 26 January 2005;

— order the Office for Harmonisation in the Internal Market to

bear the costs of the appellant in the present instance.

Pleas in law and main arguments

Applicant for the Community trade mark: Altana Pharma AG

Community trade mark concerned: The word mark ‘PRAZOL’ for
goods in class 5 — application No 1 154 269

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

Mark or sign cited: The national word mark ‘PREZAL’ for goods
in class 5

Decision of the Opposition Division: Opposition upheld

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

Pleas in law: The Board of Appeal failed to compare the marks
globally taking all relevant factors into account.

Action brought on 23 March 2007 — Telecom Italia Media
v Commission

Action brought on 30 March 2007 — Aventis Pharma v
OHIM — Altana Pharma (PRAZOL)

(Case T-95/07)

(2007/C 117/51)

(Case T-96/07)

(2007/C 117/52)

Language of the case: Italian

Language in which the application was lodged: English

Parties

Parties

Applicant: Telecom Italia Media S.p.A. (Rome, Italy) (represented
by: F. Bassan and S. Venturini, avvocati)

Applicant: Aventis Pharma SA (Antony, France) (represented by:
R. Gilbey, lawyer)

Defendant: Commission of the European Communities

26.5.2007

EN

Official Journal of the European Union

C 117/33

Forms of order sought

The applicant claims that the Court should:

— annul the Commission's decision (C(2006) 6634 final) of
24 January 2007 relating to State
aid C 52/2005
(ex NN88/2005, ex CP 101/2004), together with all prior,
consequent and connected acts;

— in the

annul

alternative,

the Commission's decision
(C(2006) 6634 final) in so far as it imposes on the Italian
State a duty to recover the aid in accordance with the
detailed rules set out therein;

— in any case, order the Commission to pay the costs. With all

consequences of law.

Pleas in law and main arguments

The present application contests the Commission's decision
finding that the State aid providing subsidies for the purchase of
digital decoders, introduced by the Italian Government for the
years 2004 and 2005,
It is emphasised in that
is unlawful.
regard that, by decision of the same date, the subsidies planned
for the year 2006 for the purchase of digital decoders with
open APIs (application program interfaces) was found to be
lawful pursuant to Article 87(c) of the EC Treaty.

According to the applicant, the difference between the lawful
aid of the year 2006 and the unlawful aid of the years 2004
and 2005 lies in the fact that the latter expressly exclude finan-
cing for satellite TV decoders — which is thus excluded de iuris
— whereas in the context of the 2006 aid it is excluded only
de facto as a consequence of being the decoder chosen by the
‘closed’ SKY monopolistic platform.

In support of the forms of order sought, the applicant alleges:

— Error of assessment by the defendant. On that point it is argued

that:

— the measure was needed in order to accelerate the transi-
tion to digital: the deadline fixed by law for the switch off
(2006) was not (and, in any case, could not reasonably
be regarded as such) peremptory.

— the measure was not designed to take the place of an
initiative that the broadcasters would have taken in any
event. In fact, the broadcasters — by reason of the par-
ticular characteristics of the terrestrial digital market —
had no interest in funding purchase of the decoders,
because:

(i) they are not vertically integrated with the producers

of software or decoders;

(ii) they do not have a business model based on
monthly subscription payments, which enables the
funding to be recovered over time;

(iii) the terrestrial decoder can accept cards from a
in competition with one

number of operators,
another;

— the measure did not discriminate against satellite broad-
casters, for two reasons. In the first place, because such
broadcasters operate on a different market, mistakenly
classed as single by the Commission. Secondly, because
those broadcasters were already excluded de facto, since
they had already — at the time of SKY (a monopolistic
platform in Italy for satellite TV) — opted for a proprie-
tary platform which uses a closed standard, and which
does not therefore deserve support, in accordance with
the position established by the Commission in the deci-
sion relating to the 2006 measure.

that, with effect

— the period taken into consideration for the calculation of
the effects of the measure on the market cannot be the
full temporal arc spanning the years 2004 and 2005,
since TIMedia advertised and marketed the first pay per
view offer on the terrestrial digital market on 22 January
2005. As regards the dies ad quem, significance cannot
but be attributed to the fact
from
1 September 2005, the subsidy was accorded to consu-
mers only in the all digital areas or in the regions
(Val D'Aosta and Sardinia) for which provision had been
made for the transition to be completed ahead of time.
The subsidy was limited at both the operational
level
and the territorial level. TIMedia could refund the aid, in
that it has not generated additional profits in the relevant
period. The costs are in fact higher than the revenue, as
is normally the case during a start up phase. Besides, the
Commission requires the quantification of the recovery
to be determined on the basis of the additional profits
generated by the extra viewers that the measure has
attracted to pay per view terrestrial digital TV. Those
profits are to be calculated by multiplying the average
revenue from users by the estimated number of addi-
tional users. In truth, the additional profits are calculated
by subtracting the additional costs from the additional
revenues (not from the average revenue). The revenue
generated by the additional user — who is rarely inclined
to purchase pay per view events — is lower than the
revenue generated by the user average.

— Infringement and misapplication of Articles 87(1) and 87(3)(c) of
the EC Treaty in so far as the Commission has not shown
that the measure distorts or threatens to distort competition,
and accordingly constitutes State aid for the purposes of
Article 87(1). Nor has the Commission shown how it can be
possible that the exemption provided for in Article 87(3)
applies to producers of decoders, but not also to television
broadcasting networks, the latter being also, indirectly, bene-
ficiaries which make use of those decoders.

— Internal

inconsistency and inherent irrationality of the contested
decision. On that point, it is emphasised that in the view of
the Commission the measure is selective, referring only to
certain indirect beneficiaries (the television broadcasting
networks) and not to others (the decoder producers).