Case T-65/08: Action brought on 13 February 2008 — Spain v Commission
Date: 2008-02-13
Institutions: Court of First Instance
Subjects: European Commission, Spain, action for annulment (EU), economic concentration, electrical energy, gas, merger control, real estate business, renewable energy, service

12.4.2008

EN

Official Journal of the European Union

C 92/41

Pleas in law and main arguments

The pleas and main arguments are the same as those relied on
in Case T-62/08 ThyssenKrupp v Commission.

Action brought on 13 February 2008 — Spain v
Commission

(Case T-65/08)

(2008/C 92/82)

Language of the case: Spanish

Action brought on 6 February 2008 — Nuova Terni
Industrie Chimiche v Commission

(Case T-64/08)

(2008/C 92/81)

Language of the case: Italian

Parties

Applicant: Kingdom of Spain (represented by: N. Díaz Abad)

Defendant: Commission of the European Communities

Parties

Applicant: Nuova Terni Industrie Chimiche SpA (Milan,
Italy)
(represented by: T. Salonico, G. Pellegrino, G. Pellegrino, G,
Barone, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul Commission Decision of 5 December 2007 in rela-
to Article 21 of Council
tion to a procedure pursuant
Regulation (EC) No 139/2004 on the control of concentra-
tions between undertakings (Case No Comp/M.4685 —
Enel/Acciona/Endesa), and

Form of order sought

— Order the Commission to pay the costs.

— declare that the contested decision is unlawful and annul
that decision in its entirety inasmuch as it regards as State
aid the contested measure, which in fact constitutes a lawful
continuation of
the measure by which the Italian State
granted compensation to Terni SpA (and its assignees) for
the expropriation of its electricity plants which occurred in
1962-63;

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

— in the alternative, annul the decision insofar as it:

(a) states

that

Italy

State
ThyssenKrupp, Cementir and Nuova Terni
Chimiche in breach of Article 88(3) of the EC Treaty;

unlawfully

to
aid
Industrie

paid

(b) states that

there are amounts to be recovered from
Industrie

ThyssenKrupp, Cementir and Nuova Terni
Chimiche; and consequently

(c) orders Italy to recover

those amounts plus interest

without delay;

— in the further alternative, annul

the contested decision
insofar as it orders Italy to recover the State aid plus interest
without delay, since that recovery infringes the general prin-
ciple of the protection of legitimate expectations.

Pleas in law and main arguments

The pleas and main arguments are the same as those relied on
in Case T-62/08 ThyssenKrupp v Commission.

Pleas in law and main arguments

The present action is brought against Commission Decision
C(2007) 5913 Final of 5 December 2007 in relation to a proce-
dure pursuant to Article 21 of Regulation (EC) No 139/2004 (1)
(Case No COMP/M.4685 Enel/Acciona/Endesa). In the contested
decision the Commission found that the applicant had infringed
Article 21 of Regulation No 139/2004 in subjecting the acquisi-
tion of joint control over Endesa, by Enel and Acciona, to a
series of conditions, given that those conditions are incompa-
tible with Articles 28, 43 and 56 EC, and thereby unduly inter-
fere with the exclusive competence of the Commission to rule
on a concentration at the Community level. Furthermore, the
defendant forced the applicant to withdraw those conditions
found to be incompatible with Community law.

In support of its claims, the applicant alleges, first, that the
Commission lacks the competence to adopt the contested deci-
sion on the basis of the procedure pursuant to Article 21 of
Regulation No 139/2004. According to the applicant, where the
Commission takes the view that a Member State has infringed
Article 21 of Regulation No 139/2004, it should initiate infrin-
gement proceedings against that Member State on the basis of
Article 226 EC.

the applicant claims that

Second,
the contested decision is
vitiated by a lack of reasoning in that the Commission did not
examine the grounds of public security on which the Spanish
Government relied, as laid down in Article 21(4) of Regulation
No 139/2004, to adopt measures in relation to the public bid
by Enel and Acciona for the purchase of Endesa.

C 92/42

EN

Official Journal of the European Union

12.4.2008

the

applicant

the Commission infringed
Finally,
alleges
Article 21(4) of Regulation No 139/2004 given that
the
Spanish authorities were not obliged to communicate the condi-
tions imposed on the public bid for the purchase of Endesa, by
Enel and Acciona, to the Commission, since those conditions
sought to protect a legitimate interest, namely public security.

(1) Council Regulation (EC) No 139/2004 of 20 January 2004 on the
control of concentrations between undertakings (the EC Merger
Regulation) (OJ 2004 L 24, p. 1).

Action brought on 12 February 2008 — Poland v
Commission

(Case T-69/08)

(2008/C 92/83)

Language of the case: Polish

contested decision, and that alone, which is decisive in this
regard.

The applicant therefore puts forward the following pleas in
support of its application:

— breach

of Article 95(6)

EC,

in

conjunction with

Article 254(3) EC;

— breach of an essential procedural requirement consisting in
the obligation to notify a decision to those to whom it is
addressed within the period laid down by law and thus to
enable them to become aware of the decision's content;

— breach of the principle of legal certainty.

(1) OJ 2008 L 16, p. 17.
(2) Directive 2001/18/EC of

the
Council of 12 March 2001 on the deliberate release into the environ-
ment of genetically modified organisms and repealing Council Direc-
tive 90/220/EEC (OJ 2001 L 106, p. 1).

the European Parliament and of

Parties

Applicant: Republic of Poland (represented by: M. Dowgielewicz,
acting as Agent)

Action brought on 13 February 2008 — Promat v OHIM
— Prosima Comercial (PROSIMA PROSIMA COMERCIAL
S.A.)

(Case T-71/08)

(2008/C 92/84)

Defendant: Commission of the European Communities

Language in which the application was lodged: German

Form of order sought

Parties

— annul Commission Decision 2008/62/EC of 12 October
2007 relating to Articles 111 and 172 of the Polish Draft
Act on Genetically Modified Organisms, notified by the
Republic of Poland pursuant
the
EC Treaty as derogations from the provisions of Directive
2001/18/EC of the European Parliament and of the Council
on the deliberate release into the environment of genetically
modified organisms
(decision notified under document
number C(2007) 4697) (1);

to Article 95(5) of

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant seeks the annulment of Commission Decision
2008/62/EC of 12 October 2007 which rejects proposed
national provisions laying down a derogation from Directive
2001/18/EC (2) that were notified by the Republic of Poland
pursuant to Article 95(5) EC. The applicant states that it was
the contested decision on
notified by the Commission of
4 December 2007, that is to say after expiry of the six-month
period laid down in Article 95(6) EC, meaning that, in accord-
ance with that article, those provisions should be considered to
have been approved upon expiry of the six-month period.

The applicant submits that
the decision was
adopted on 12 October 2007 is immaterial as regards obser-
it is the date of notification of the
vance of that time-limit;

the fact

that

Applicant: Promat GmbH (Ratingen, Germany) (represented by:
S. Beckmann, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM:
Prosima Comercial SA (Barcelona, Spain)

Form of order sought

— annul the decision of the Office for Harmonisation in the

Internal Market in Case R 574/2007-2;

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Prosima Comercial SA

Community trade mark concerned: Figurative mark PROSIMA
PROSIMA COMERCIAL S.A. for goods and services in Classes 6,
7, 11, 16, 17, 20, 22, 35 to 39, 41 and 42 (Application
No 2 423 176)

Proprietor of the mark or sign cited in the opposition proceedings:
Promat GmbH