Case T-352/08: Action brought on 25 August 2008 — Pannon Hőerőmű v Commission of the European Communities
Date: 2008-08-25
Institutions: Court of First Instance
Subjects: Hungary, action for annulment (EU), fixing of prices, market stabilisation, precious stones

C 285/46

EN

Official Journal of the European Union

8.11.2008

Other parties to the proceedings before the Board of Appeal of OHIM:
Pablo Barranco Schnitzler
Just Desvern, Spain) and
(Sant
Mariano Barranco Rodriguez (Sant Just Desvern)

Defendant(s): Commission of the European Communities

Form of order sought

Form of order sought

— annul the decision of the Second Board of Appeal of OHIM

of 30 May 2008 (Case R 1034/2007-2);

— order OHIM to pay the costs,

including those of

the

proceedings before the Board of Appeal.

— As a main claim, annulment of

the
Commission of 4 June 2008 on aid granted by Hungary
under long term power purchase agreements (C 41/2005
(ex NN 49/2005), ‘the contested decision’).

the decision of

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

— In the alternative, that the applicant be exempted from the
obligation to repay the aid imposed by the contested deci-
sion.

Community trade mark concerned: figurative mark ‘MATRATZEN
CONCORD’ for goods in Classes 10, 20 and 24 (Application
No 3 355 369)

Proprietors of the mark or sign cited in the opposition proceedings:
Pablo Barranco Schnitzler and Mariano Barranco Rodriguez

or

Mark
‘MATRATZEN’ for goods in Class 20

cited

sign

in

opposition: national word mark

Decision of the Opposition Division: Refusal of the application for
a Community trade mark

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,
in that there is no likelihood of confusion
between the conflicting marks, and infringement of Article 43(2)
of
in that no proof has been provided of
genuine use of the mark cited in opposition.

that regulation,

Action brought on 25 August 2008 — Pannon Hőerőmű v
Commission of the European Communities

(Case T-352/08)

(2008/C 285/85)

Language of the case: Hungarian

Parties

Applicant(s): Pannon Hőerőmű Energiatermelő (Pécs, Hungary)
(represented by: M. Kohlrusz, P. Simon and G. Ormai)

— That the Commission be ordered to pay the costs.

Pleas in law and main arguments

The applicant is a private limited company principally involved
in the production of electricity. Before the accession of Hungary
to the European Union, certain electricity producers, as sellers,
concluded long term power purchase agreements (‘PPAs’) with
MVM Trade Villamosenergia-kereskedelmi Zrt.
(‘MVM’), as
purchaser. Under those agreements, MVM is obliged to purchase
a specific quantity of electricity from the producers operating
under the PPAs. According to the contested decision, that obli-
gation to purchase constitutes state aid incompatible with the
common market, which must be repaid by its recipients.

In support of its main claim, seeking the annulment of the
contested decision, the applicant essentially alleges that there
has been a breach of essential procedural requirements, that the
legal rules have been misapplied and that it has an obligation to
supply in the general economic interest.

As regards the breaches of essential procedural requirements,
the applicant complains,
first, that the Commission did not
examine each of the PPAs but reached a general conclusion
concerning all the PPAs. Second, the applicant alleges that the
Commission did not take into account the applicability of the
PPAs in the long term but only from 1 May 2004, that is to say,
it considered the period between the accession of Hungary to
the European Union and the adoption of the contested decision.
Third, the applicant states that the Commission only examined
how an economic operator in the position of MVM proceeded
and did not analyse the conduct of economic operators in the
position of the electricity producers. Fourth, it alleges that the
Commission erroneously classed the price fixing mechanism
it
adopted under the PPAs as a ‘guarantee’. Fifth, and finally,
submits that, as regards distortion of competition, the Commis-
sion merely made general statements and did not examine the
actual circumstances.

8.11.2008

EN

Official Journal of the European Union

C 285/47

In the event that the plea in law alleging breach of essential
procedural requirements is held to be unfounded, the applicant
puts forward a plea based on the misapplication of the law.
According to the applicant, the conditions are not met for the
classification of the PPAs it concluded as State aid. First, the
Commission is wrong to apply the criterion of private investor,
since the situation of MVM cannot be compared to that of a
typical private investor. Second, the measure cannot be said to
be of a selective nature either, since the conclusion of the PPAs
was an express legal obligation. Third, the advantage was not
granted by the State as MVM is a commercial company oper-
ating under market conditions. Fourth, there was no distortion
of competition since there is no evidence that the PPAs have
had any effect on competition.

However, in the event that the Court of First Instance should
consider that the conditions for State aid are met, the applicant
states that the service it supplied is in the nature of a service of
general economic interest so that the PPAs which it concluded
do not constitute State aid incompatible with the common
market.

In support of its claim that it should be exempted from the obli-
gation to repay, submitted in the alternative in its application,
the applicant relies on the principles of proportionality, of the
protection of legitimate expectations and legal certainty and the
right to legal redress.

Action brought on 21 August 2008 — Spira v Commission

(Case T-354/08)

(2008/C 285/86)

Language of the case: English

Parties

Form of order sought

— Annul the Commission decision of 5 June 2008, pursuant
to Article 7(2) of Council Regulation No 773/2004, in case
COMP/38.826/B-2-Spira/De Beers/DTC Supplier of Choice;

— Order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

In the present case, the applicant contests Commission Decision
(2008) D/203546 of 5 June 2008 by which the Commission
declared that the change in facts due to the annulment by the
Court of First Instance of the commitment decision (1) was not
a decisive element which would require the Commission to
revisit its Decision (2007) D/200338 of 26 January 2007, by
which it rejected, for lack of Community interest, the applicant's
complaint regarding violation of Articles 81 and 82 EC in
connection with the Supplier of Choice (SoC) system applied by
De Beers Group for
rough diamonds
(‘rejection decision’ (2)) (Case COMP/38.826/B-2-Spira/De Beers/
DTC Supplier of Choice).

the distribution of

The applicant puts forward three pleas in law in support of its
claims.

the applicant alleges that

Firstly,
the Commission failed to
examine with care and impartiality the anticompetitive practices
denounced by the applicant in its complaint.

Secondly, the applicant claims that when re-examining the issue
of input foreclosure the Commission could not claim that there
was a lack of Community interest to act on the complaint in
light of the significant damage resulting from the input foreclo-
sure caused by the SoC system. The applicant submits that the
input foreclosure should have been considered of Community
interest as it affects the availability of rough diamonds EU-wide
the SoC distribution
It considers that
and even worldwide.
system is an anti-competitive selective distribution system that
restricts intra-brand competition.

in the alternative,

the
Thirdly,
Commission erred in law and provided inadequate statement of
reasons in the application of the foreclosure effects test by:

the applicant

submits

that

Applicant: Diamanthandel A. Spira BVBA (Antwerp, Belgium)
(represented by: J. Bourgeois, Y. Van Gerven, F. Louis, A. Vallery,
lawyers)

Defendant: Commission of the European Communities

— not having first defined the analyzed market structure,
market power of the company concerned and the market
position of its competitors;

— failing to engage the examination of all potential restrictions
or monopolization activities of the supplier whose selective
distribution system was under scrutiny.