Case T-329/07: Action brought on 3 September 2007 — UPS Europe and UPS Deutschland v Commission
Date: 2007-10-20
Institutions: Court of First Instance
Subjects: European Commission, Germany, State aid, action for failure to act, complaint to the Commission, control of State aid, postal service

20.10.2007

EN

Official Journal of the European Union

C 247/39

The applicants further contend that the contested decision was
based on a scientific report which was not established within
the time-limit set out in Article 8(7) of Regulation 451/2000.

and Designs)

Marks
on 28 June 2007 in Case
No R 727/2006-2 be annulled and the defendant be ordered
to register the contested trade mark;

Moreover, the applicants allege among others a violation of the
principles of proportionality, non-discrimination, subsidiarity
and sound administration as well as the obligation to state
reasons and their right to be heard.

— the defendant pays the costs.

Pleas in law and main arguments

Finally, the applicants submit that they will not be able to exer-
cise their intellectual property rights pursuant to Article 13 of
Directive 91/414 in connection with the data package submitted
to the defendant.

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘PATRICK
EXCLUSIVE’ for goods in class 25 — application No 3 063 427

(1) Council Directive 91/414/EEC of 15 July 1991 concerning the
placing of plant protection products on the market (OJ 1991 L 230,
p. 1).

(2) OJ 2007 L 146, p. 19.

Proprietor of the mark or sign cited in the opposition proceedings:
Cassera SpA

Mark or sign cited: Community, national and international figura-
tive marks and word marks ‘G. PATRICK’ for goods in classes 24
and 25

Decision of
entirety

the Opposition Division: Opposition upheld in its

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94 as there is no likelihood of confusion between
the conflicting trade marks.

Action brought on 29 August 2007 — Patrick Holding v
OHIM — Cassera (PATRICK EXCLUSIVE)

(Case T-327/07)

(2007/C 247/64)

Language in which the application was lodged: English

Parties

Applicant: Patrick Holding ApS (Fredensborg, Denmark) (repre-
sented by: J. Løje, lawyer)

Action brought on 3 September 2007 — UPS Europe and
UPS Deutschland v Commission

(Case T-329/07)

(2007/C 247/65)

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

Language of the case: English

Other party to the proceedings before the Board of Appeal: Cassera
SpA (Milan, Italy)

Parties

Form of order sought

Applicants: UPS Europe NV/SA (Brussels, Belgium) and UPS
Deutschland Inc. & Co. OHG (Neuss, Germany) (represented by:
T. Ottervanger and E. Henny, lawyers)

— The decision taken by the Second Board of Appeal of the
(Trade

Office for Harmonisation in the Internal Market

Defendant: Commission of the European Communities

C 247/40

EN

Official Journal of the European Union

20.10.2007

Form of order sought

Defendant: Commission of the European Communities

— To declare in accordance with Article 232 EC that

the
Commission has failed to act by not having defined a posi-
tion with respect to the applicants' complaint lodged with
the Commission on 11 May 2004;

— to order the Commission to pay the costs incurred by the

applicants in the proceedings.

Pleas in law and main arguments

The applicants claim that the Commission has failed to act by
not having defined its position after having been invited to do
so under Article 232 EC on the applicants' complaint lodged
with the Commission on 11 May 2004 regarding unlawful state
aid allegedly granted to Deutsche Post by Germany in form of
among others state guarantees, contributions to Deutsche Post's
pension fund and exemption from various statutory obligations.

In support of their application, the applicants submit that the
Commission is required to conduct a diligent and impartial
examination of the complaint received in particular in the light
of the Commission's exclusive jurisdiction to assess the compat-
ibility of aid measures with the common market.

The applicants further submit that Article 232 EC must be inter-
preted as entitling individuals or undertakings to bring an
action for failure to act against an institution for failure to adopt
measures which would have been of direct and individual
concern to them, even though they are not the potential addres-
sees of these measures.

Finally, the applicants contend that the measures which the
Commission failed to adopt can be considered to be of direct
and individual concern to the applicants as competing undertak-
ings of Deutsche Post.

Action brought on 7 September 2007 — Chupa Chups SA
v Commission of the European Communities

(Case T-331/07)

(2007/C 247/66)

Language of the case: Spanish

Parties

Applicant: Chupa Chups, SA (Barcelona, Spain) (represented by:
Ramón Falcón Tella, lawyer)

Form of order sought

— Annul Article 1(2) of the decision adopted by the Commis-
sion declaring incompatible with the common market
regional aid to the amount of EUR 800 000, granted in
2003 under
the ‘Minería 2’ programme, and declaring
consequently that that aid may not be implemented;

— Alternatively, annul the last sentence of Article 1(2) of the
the aid may

decision, according to which ‘this part of
accordingly not be implemented’;

— In either case, order the Commission to pay the costs.

Pleas in law and main arguments

incompatible with the
The contested decision regards as
common market regional aid to the amount of EUR 800 000,
granted in 2003 under the ‘Minería 2’ programme, previously
authorised by the Commission. The contested decision considers
that
for aid within that
programme since firms in difficulty are excluded from it.

the applicant was not eligible

In support of its claims, the applicant accuses the Commission
of a manifest error of assessment and of infringement of the
principle of protection of legitimate expectations.

As regards the factual inaccuracies and the error of assessment
by the Commission, the applicant claims that 2002 was the first
year in which losses were recorded, and that in announcing the
aid, the national authorities could not have been aware of those
losses, given that the accounts had not been approved.

Further, the applicant submits that the firm cannot be regarded
as a firm in difficulty within the meaning of paragraph 5(a) of
the Community Guidelines on state aid for rescuing and restruc-
turing firms in difficulty, which provides that a firm is regarded
as being in difficulty if it has lost half of its registered capital
and a quarter of that capital has been lost over the preceding
12 months. The Commission makes a manifest error of assess-
ment in that, in order to calculate the percentage represented by
the losses and to determine if those affect the capital, it has not
taken into account the legal and voluntary reserves which the
company had, which were of an amount more than sufficient to
cover all the losses.

It was the firm itself, with its own resources and those
contributed by creditors and private banks, which overcame the
loss-making situation, and accordingly the firm cannot be
regarded as a firm in difficulty, under paragraph 4 of the Com-
munity Guidelines on state aid for rescuing and restructuring
firms in difficulty, which defines firms in difficulty as those
which are unable to overcome such a situation without outside
assistance.