Case T-188/07: Action brought on 28 May 2007 — Fastweb v Commission
Date: 2007-07-21
Institutions: Court of First Instance
Subjects: European Commission, Italy, State aid, action for annulment (EU), audiovisual equipment, control of State aid, high-definition television, pay television, purchase, redemption

21.7.2007

EN

Official Journal of the European Union

C 170/35

Pleas in law and main arguments

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘DREAM IT, DO
IT!’ for services in classes 35, 36, 41 and 45 — application
No 3 844 792

Decision of the examiner: Refusal of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) of Council Regu-
lation No 40/94 as the trade mark applied for will be perceived
by the relevant public as coming from a particular undertaking
since it has not become customary in the current language or in
the practices of trade as a designation of the services covered by
it.

The contested decision in the present case is the same as that in
Case T-96/07 Telecom Italia Media v Commission (1).

The following grounds of annulment are submitted in support
of the action:

— infringement of Article 87(1) of the EC Treaty, inadequate
reasoning and failure to conduct a proper investigation
concerning the classification of the measures as State aid.
The applicant submits in particular that the measures in
question do not constitute State aid in that they do not
entail a transfer of State resources to the alleged beneficiaries
and do not confer on them a selective advantage to the
detriment of competitors.

Action brought on 28 May 2007 — Fastweb v Commission

(Case T-188/07)

(2007/C 170/68)

Language of the case: Italian

Parties

Applicant: Fastweb SpA (represented by: M. Merloa, of its Legal
Service, T. Ubalidi, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— annul the Commission's decision (C(2006) 6634 final) of
24 January 2007 relating to State aid C52/2005 (ex NN
in so far as it classifies as
88/2005, ex CP 101/2004)
unlawful State aid which is incompatible with the common
market measures which Italy implemented by providing
subsidies for the purchase of digital decoders to terrestrial
broadcasters offering pay-TV services and cable pay-TV
operators (Article 1 of the decision);

— annul the Commission's decision (C(2006) 6634 final) of
24 January 2007 in so far as it orders Italy to recover the
aid declared incompatible from the beneficiaries and in par-
ticular from the applicant (Articles 2 and 3 of the decision);

— order the Commission to pay the costs.

— Infringement of Article 87(1) of the EC Treaty, contradictory
and inadequate reasoning with regard to the identification
and existence of an economic advantage in favour of the
alleged beneficiaries of the aid. The applicant states that the
Commission's assessment of the identification of the form
of aid, that is, the economic advantage which the alleged
beneficiaries would have enjoyed, is inadequate and that the
statement of reasons is manifestly contradictory. The deci-
sion is also vitiated in that if fails to demonstrate in what
manner the subsidies granted to consumers to purchase
indisputably
decoders
conferred an economic advantage on the alleged benefici-
aries of the measures.

automatically

necessarily,

and

— A failure to state adequate reasons with regard to the quanti-
fication of the aid to be recovered from the beneficiaries and
unlawfulness of the order for recovery on the basis that it
infringes the rules of the Treaty on State aid and Article 14
of Council Regulation (EC) No 659/1999 of 22 March
1999. The applicant submits that the Commission's quantifi-
cation of the advantage which would have been conferred
on the alleged beneficiaries of the proposed measures is
based on inadequate reasoning and goes beyond the powers
conferred on the Commission by the EC Treaty and by the
procedural regulation for State aid.

— Unlawfulness of the order for recovery in that it is absolutely
and objectively impossible from the outset to implement it,
a failure to state adequate reasons and infringement of
Article 14(1) of Council Regulation (EC) No 659/1999 of
22 March 1999 and of the principle of proportionality.

(1) OJ L 117, 29.5.2007, p. 32.