Case C-279/08 P: Appeal brought on 25 June 2008 by the Commission of the European Communities against the judgment delivered by the Court of First Instance (Fifth Chamber, Extended Composition) on 10 April 2008 in Case T-233/04 Kingdom of the Netherlands , supported by Federal Republic of Germany v Commission of the European Communities
Date: 2008-06-25
Institutions: Court of Justice
Subjects: European Commission, Netherlands, State aid, action for annulment (EU), appeal, atmospheric pollutant, industrial enterprise, tradeable emission permit

C 223/30

EN

Official Journal of the European Union

30.8.2008

(Austria)

Reference for a preliminary ruling from the Oberster
lodged on 26 June 2008 — Die
Gerichtshof
BergSpechte Outdoor Reisen
Edi
Koblmüller GmbH v Günter Guni and trekking.at Reisen
GmbH

und Alpinschule

(Case C-278/08)

(2008/C 223/46)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: Die BergSpechte Outdoor Reisen und Alpinschule Edi
Koblmüller GmbH

Defendants: Günter Guni and trekking.at Reisen GmbH

Questions referred

1. Must Article 5(1) of the First Council Directive 89/104/EEC
of 21 December 1988 to approximate the laws of
the
Member States relating to trade marks (‘Directive 89/104’) (1)
be interpreted as meaning that a trade mark is used in a
manner reserved for the proprietor of the trade mark if the
trade mark or a sign similar to it (such as the word compo-
nent of a word and figurative trade mark) is reserved as a
keyword with a search engine operator and advertising for
identical or similar goods or services therefore appears on
the screen when the trade mark or the sign similar to it is
entered as a search term?

2. If the answer to Question 1 is yes:

(A) Is the trade mark proprietor's exclusive right infringed
by the utilisation of a search term identical with the
trade mark for an advertisement for identical goods or
services, regardless of whether the accessed advertise-
ment appears in the list of hits or in a separate adver-
tising block and whether it is marked as a ‘sponsored
link’?

(B) In respect of the utilisation of a sign identical with the
trade mark for similar goods or services, or the utilisa-
tion of a sign similar to the trade mark for identical or
similar goods or services, is the fact that the advertise-
ment is marked as a ‘sponsored link’ and/or appears not
in the list of hits but in a separate advertising block
sufficient to exclude any likelihood of confusion?

(1) OJ 1989 L 40, p. 1.

Appeal brought on 25 June 2008 by the Commission of
the European Communities against the judgment delivered
by the Court of First Instance (Fifth Chamber, Extended
Composition) on 10 April 2008 in Case T-233/04 Kingdom
the Netherlands, supported by Federal Republic of
of
Germany v Commission of the European Communities

(Case C-279/08 P)

(2008/C 223/47)

Language of the case: Dutch

Parties

Appellant: Commission of the European Communities (repre-
sented by: H. van Vliet, K. Gross and C. Urraca Gaviedes,
Agents)

Other parties to the proceedings: Kingdom of
Federal Republic of Germany

the Netherlands,

Form of order sought

— Primarily:

(a) set aside the judgment under appeal;

(b) declare inadmissible the action seeking annulment of

the Decision;

(c) order the Kingdom of the Netherlands to pay the costs
of the proceedings before the Court of First Instance and
those of the present appeal;

— In the alternative:

(a) set aside the judgment under appeal;

(b) dismiss the action seeking annulment of the Decision;

(c) order the Kingdom of the Netherlands to pay the costs
of the proceedings before the Court of First Instance and
those of the present appeal.

Pleas in law and main arguments

— In its first plea, the Commission submits that the Court of
First Instance erred in declaring the action brought by the
Kingdom of the Netherlands to be admissible.

In the view of the Commission, it is clear from the Court's
case-law, and in particular from its order in Case C-164/02,
that a Member State cannot seek the annulment of a
Commission decision by which the Commission declares an
aid measure notified by that Member State to be compatible
with the common market.

30.8.2008

EN

Official Journal of the European Union

C 223/31

— By its second (alternative) plea in law,

the Court of First

the Commission
submits that
Instance was wrong to
conclude that the disputed measure is not selective, that is
to say, that it does not favour certain undertakings within
the meaning of Article 87(1) EC. The Commission goes on
to submit
Instance erred in
the Court of First
concluding that, even if the measure were selective, it would
still not constitute State aid in view of its purpose and on
the ground that that measure would be justified by the
nature and general scheme of the system.

that

Appeal brought on 26 June 2008 by Deutsche Telekom AG
against
the judgment delivered by the Court of First
Instance on 10 April 2008 in Case T-271/03 Deutsche
Telekom v Commission

(Case C-280/08 P)

(2008/C 223/48)

Language of the case: German

Parties

Appellant: Deutsche Telekom AG (represented by: U. Quack,
Rechtsanwalt, S. Ohlhoff, Rechtsanwalt, M. Hutschneider,
Rechtsanwalt)

Other parties to the proceedings: Commission of the European
Communities, Arcor AG & Co. KG, Versatel NRW GmbH,
formerly Tropolys NRW GmbH,
formerly CityKom Münster
GmbH Telekommunikationsservice, EWE TEL GmbH, HanseNet
Telekommunikation GmbH, Versatel Nord-Deutschland GmbH,
formerly KomTel Gesellschaft für Kommunikations- und Infor-
mationsdienste mbH, NetCologne Gesellschaft für Telekommu-
nikation mbH, Versatel Süd-Deutschland GmbH, formerly tesion
Telekommunikation GmbH, Versatel West-Deutschland GmbH
& Co. KG, formerly VersaTel Deutschland GmbH & Co. KG

Form of order sought

— Set aside the judgment of the Court of First Instance of

10 April 2008 in Case T-271/03;

— annul Commission Decision 2003/707/EC (1) of 21 May
2003, notified under document number C(2003)1536;

— in the alternative, reduce, at the Court's discretion, the fine
the
imposed on Deutsche Telekom AG in Article 3 of
contested Commission decision;

— order the Commission to pay the costs.

Pleas in law and main arguments

The appellant bases its appeal against the above mentioned
judgment of
Instance on the following
grounds of appeal.

the Court of First

The judgment infringes Article 82 EC and the principle of the protec-
tion of
legitimate expectations because in the present case, there
has been no objective infringement of Article 82 EC attributable
to the appellant and the appellant has also not been at fault.
The judgment fails to take into account, in the manner required
by law, repeated examinations of the purported margin squeeze
by the German regulatory authority for telecommunications and
post (‘RegTP’), which was responsible at that time for regulating
the appellant. RegTP repeatedly examined whether there was an
anti-competitive margin squeeze in respect of local loops and
found that there was none. In a situation like that, the responsi-
bility of the relevant regulatory authority overrides and restricts
the regulated undertaking's special responsibility for maintaining
the structure of the market. In the light of the regulatory deci-
sions, the appellant had a right to assume that its conduct was
not anti-competitive. The assumption that the appellant could
have reduced the purported margin squeeze by increasing its
ADSL charges is contrary to the Court's own position that, in
the context of examining a margin squeeze, ‘cross-subsidisation’
between different markets is not to be taken into account. In
addition, the Court of First Instance was wrong not to object to
the fact that the Commission failed to examine whether an
increase in ADSL charges would have actually reduced the
purported margin squeeze.

The judgment also infringes Article 82 EC because the Court of
First Instance erred in examining whether the conditions for the
application of Article 82 EC were met. In the present case, a
margin squeeze test is inherently unsuitable to establish abuse.
In a situation where charges for wholesale access were imposed
by the relevant regulatory authority — as is the case here — the
test in itself could produce anti-competitive results.

In this context, the Court of First Instance also infringed its obli-
gation to state the reasons for its judgment.

In the context of examining the methodology used by the
Commission to establish that there had been a margin squeeze,
the contested judgment also contains errors of law on essential
points. First of all,
the so-called ‘as-efficient-competitor-test’,
which the Court of First Instance used as a generally applicable
standard of comparison, can in any event not be used in a situa-
tion in which the dominant undertaking and its competitors
operate under different regulatory and actual competitive condi-
tions — as is the case here. Second, the margin squeeze test
only takes into account charges for access, while charges for
additional
(especially telephone
calls) that require the same wholesale service, were not consid-
ered. The judgment's findings on the effects of the purported
margin squeeze suffered from several errors in law and the judg-
ment failed to examine whether the purported margin squeeze
supported the Court of First Instance's findings on the structure
of the market.

telecommunication services