Case T-167/04: Judgment of the Court of First Instance of 11 July 2007 — Asklepios Kliniken GmbH v Commission of the European Communities (State aid — Public hospitals — Compensation for operating losses and provision of guarantees — Complaint — Failure by the Commission to define its position — Action for failure to act — Locus standi — Admissibility — Reasonable time frame — Regulation (EC) No 659/1999)
Date: 2007-08-25
Institutions: Court of First Instance
Subjects: European Commission, Germany, State aid, action for annulment (EU), medical institution, private sector, terms for aid

25.8.2007

EN

Official Journal of the European Union

C 199/31

Judgment of the Court of First Instance of 11 July 2007 —
Mülhens v OHIM/Minoronzoni (TOSCA BLU)

Judgment of the Court of First Instance of 11 July 2007 —
Asklepios Kliniken GmbH v Commission of the European
Communities

(Case T-150/04) (1)

(Case T-167/04) (1)

(Community trade mark — Opposition procedure — Applica-
tion for figurative Community trade mark TOSCA BLU —
Earlier national word mark TOSCA — Relative grounds for
refusal — Well-known trade mark within the meaning of
Article 6 bis of the Paris Convention — Article 8(1)(b) of
Regulation (EC) No 40/94 — Article 8(5) of Regulation (EC)
No 40/94)

(2007/C 199/57)

Language of the case: Italian

Parties

Applicant: Mülhens GmbH & Co. KG (Cologne, Germany) (repre-
sented by: T. Schulte-Beckhausen, lawyer)

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs) (represented by: M. Capostagno and
O. Montalto, agents)

Other party to the proceedings before the Board of Appeal of OHIM
intervening before the Court of First
Instance: Minoronzoni Srl
(Ponte San Pietro, Italy) (represented by: G. Floridia, F. Polettini
and R. Floridia, lawyers)

Re:

Action brought against the decision of the First Board of Appeal
of OHIM of 18 February 2004 (Case R 949/2001-1) relating to
opposition proceedings between Mühlens GmbH & Co. KG and
Minoronzoni Srl.

(State aid — Public hospitals — Compensation for operating
losses and provision of guarantees — Complaint — Failure by
the Commission to define its position — Action for failure to
act — Locus standi — Admissibility — Reasonable time
frame — Regulation (EC) No 659/1999)

(2007/C 199/58)

Language of the case: German

Parties

Applicant: Asklepios Kliniken GmbH (Königstein-Falkenstein,
Germany) (represented by: K. Füßer, lawyer)

Defendant: Commission of the European Communities (repre-
sented by: V. Kreuschitz and M. Niejahr, Agents)

in support of

the defendants: Federal Republic of
Interveners
and
initially by C.-D. Quassowski
Germany (represented:
A. Tiemann,
and
Plessing
and subsequently by W.-D.
C. Schulze-Bahr, Agents); and United Kingdom of Great Britain
and Northern Ireland (represented: initially by M. Bethell, and
subsequently by C. Gibbs and E. O'Neill, Agents)

Re:

Application for a declaration under Article 232 EC that, by
failing to take a decision under Article 4(2), (3) or (4) of Council
Regulation (EC) No 659/1999 of 22 March 1999 laying down
detailed rules for the application of Article [88] EC (OJ 1999
L 83, p. 1) on the complaint lodged by the applicant concerning
the award of allegedly unlawful aid to publicly-owned hospitals
in Germany, the Commission has failed to fulfil its obligations
under Article 88 EC and Articles 10(1) and 13(1) of Regulation
No 659/1999.

Operative part of the judgment

The Court:

Operative part of the judgment

1. Dismisses the action;

1. The action is dismissed;

2. Mühlens GmbH & Co. KG are ordered to pay the costs.

2. Orders Asklepios Klinken GmbH to pay both its own costs and

those incurred by the Commission;

3. Orders the Federal Republic of Germany and the United Kingdom
of Great Britain and Northern Ireland to bear their own costs.

(1) OJ C 239, 25.9.2004.

(1) OJ C 201, 7.8.2004.