Case C-399/08 P: Appeal brought on 15 September 2008 (by fax on 12 September 2008 ) by the Commission of the European Communities against the judgment delivered by the Court of First Instance (Third Chamber, Extended Composition) on 1 July 2008 in Case T-266/02 Deutsche Post AG, supported by the Federal Republic of Germany v Commission of the European Communities, supported by Bundesverband Internationaler Express- und Kurierdienste eV (BIEK) and UPS Europe NV/SA
Date: 2008-09-15
Institutions: Court of Justice
Subjects: Germany, appeal, international trade, postal service, restriction on competition

C 301/18

EN

Official Journal of the European Union

22.11.2008

Question referred

Pleas in law and main arguments

Are the Italian regional and national provisions laying down
mandatory minimum distances between roadside petrol stations
and, in particular, Article 13 of the Regional Law of Latium,
which applies to the case before this Court and is material for
the decision in those proceedings, as well as the national frame-
work legislation (Legislative Decree No 32/1998, as subse-
quently amended and supplemented, Law No 57/2001 and
Ministerial Decree of 31 October 2001), in so far as they allow,
or in any event have not prevented provision being made, in the
exercise of
for
minimum distances between petrol stations under Article 13,
compatible with Community law, in particular Articles 43, 48,
49 and 56 of the EC Treaty and the principles of freedom of
competition and non-discrimination enshrined in that treaty, as
stated in the grounds?

the regulatory powers of

the Italian State,

Appeal brought on 16 September 2008 (by fax on
12 September 2008) by Audi AG against the judgment of
the Court of First Instance (Fourth Chamber) delivered on
9 July 2008 in Case T-70/06 Audi AG v Office for
Harmonisation in the Internal Market (Trade Marks and
Designs)

(Case C-398/08 P)

(2008/C 301/32)

Language of the case: German

Parties

Appellant: Audi AG (represented by: S.O. Gillert and Dr F.
Schiwek, Rechtsanwälte)

Other party to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs)

Breach of Article 7(1)B of Council Regulation (EC) No 40/94 of
20 December 1993 on the Community trade mark: The Court
of First Instance — like the Board of Appeal — did not state
sufficient reasons regarding the relevant public in each case. In
view of the large number of goods and services to be covered
by the trade mark applied for, it was not permissible to take a
uniform view across the board.

Further, the Court of First Instance applied too strict a standard
when considering distinctive character. The Court of First
Instance disregarded the fact
that even so-called advertising
slogans are essentially word marks. It applied noticeably stricter
requirements to establish distinctive character solely on the basis
in its view the trade mark applied for,
of
‘Vorsprung durch Technik’, was an advertising slogan.

the fact

that

Breach of Article 63 of Council Regulation No 40/94: The
Court of First Instance confined itself to reviewing the decision
of the Board of Appeal. New facts put forward by the parties,
which were not already covered by the decision of the Board of
Appeal were neither admitted nor taken into account in the
decision. However, when considering distinctive character, the
Court of First Instance referred to a document which was only
submitted by the defendant with the defence. The finding that
the trade mark applied for,
‘Vorsprung durch Technik’, was
devoid of distinctive character was based essentially on the
content of that document and the appraisal of that content by
the Court of First Instance.

Appeal brought on 15 September 2008 (by fax on
12 September 2008) by the Commission of the European
Communities against the judgment delivered by the Court
of First Instance (Third Chamber, Extended Composition)
on 1 July 2008 in Case T-266/02 Deutsche Post AG,
supported by the Federal Republic of Germany v
Commission of the European Communities, supported by
Bundesverband Internationaler Express- und Kurierdienste
eV (BIEK) and UPS Europe NV/SA

(Case C-399/08 P)

(2008/C 301/33)

Language of the case: German

Form of order sought

— Set aside the judgment under appeal;

— Set aside the decision of the Second Board of Appeal of the
Office
Internal Market of
16 December 2005 in Case R 237/2005-2 in so far as it
dismisses in part the appeal against the examiner's decision;

for Harmonisation in the

Parties

— Order the Office for Harmonisation in the Internal Market
to pay the costs of proceedings before the Court of Justice,
before the Court of First Instance and before the Board of
Appeal.

Appellant: Commission of the European Communities (repre-
sented by V. Kreuschitz, J. Flett and B. Martenczuk, acting as
Agents)

22.11.2008

EN

Official Journal of the European Union

C 301/19

Other parties to the proceedings: Bundesverband Internationaler
Express- und Kurierdienste eV, UPS Europe NV/SA, Deutsche
Post AG, Federal Republic of Germany

Form of order sought

— set aside the judgment under appeal in its entirety;

— declare, pursuant to Article 61 of the Statute of the Court of
Justice, that the applicant has failed to prove that the deci-
sion infringes Article 87(1) EC, and accordingly dismiss the
application. In the alternative, the Commission asks for the
case to be referred back to the Court of First Instance;

— order the applicant to pay the costs.

Pleas in law and main arguments

The respondent to the appeal is Deutsche Post AG (DPAG), a
large undertaking internationally active in the field of postal
services, which received substantial compensation payments
from State resources. In a separate decision under Article 82 EC
from 2002, which has not been contested, the Commission
found that DPAG had abused its dominant position in the
market by means of prices on the parcels market that did not
cover costs. Since DPAG had made losses everywhere in the
period in question, that aggressive price policy could only have
been financed by the resources the undertaking had received as
financial compensation.

issue in the present appeal

The central
is which method of
analysis the Commission was entitled to apply in the particular
circumstances of the present case in order to find that there was
unlawful aid to DPAG.

According to the method preferred by the Court of First
Instance in the judgment under appeal, all the undertaking's
costs and receipts in the relevant period in connection with the
public interest obligations would have to be examined as to
whether
financial
the undertaking had received excessive
compensation from the State. If there were such overcompensa-
tion, it could be concluded that those resources had also been
used to finance the unfair price policy in the adjacent market of
door-to-door parcel services.

According to the method used in the decision, the deficits in the
adjacent market caused by the unfair price policy are calculated
and it is ascertained whether or not those shortfalls have been
compensated with State resources. If such a compensation is
found and there is no other source of finance (in the form of
the undertaking's own resources), the conclusion is that State
resources have been made use of to finance the unfair price
policy in the adjacent market of door-to-door parcel services.

chain of reasoning which includes the assumption that money
must after all come from somewhere, the existence of unlawful
State aid may be deduced. Neither the chain of reasoning nor
the underlying facts are challenged in the judgment under
appeal. The Court of First Instance nevertheless takes the view
in the judgment under appeal, without further explanation, that
only the former method is possible.

The Commission puts forward the following grounds of appeal.
There is an infringement of Articles 87(1) EC and 86(2) EC, in
so far as those provisions were incorrectly interpreted in the
judgment under appeal as excluding a method, not otherwise
challenged in the judgment under appeal, which makes it
possible to conclude, on the basis of
logical and watertight
reasoning, that State aid incompatible with the common market
is present. The Commission further relies on lack of jurisdiction
of the Court of First Instance and breach of Article 230 EC, in
so far as the Court of First Instance exceeded its powers and
went beyond the power of review provided for in Article 230 EC,
and on Article 36 of the Statute of the Court of Justice, in so
far as the Court of First Instance failed to state reasons for the
unlawfulness of the method used in the decision.

Reference for a preliminary ruling from High Court of
(United Kingdom) made on
Justice (Chancery Division)
17 September 2008 — Football Association Premier League
Ltd, NetMed Hellas SA, Multichoice Hellas SA v QC
Leisure, David Richardson, AV Station plc, Malcolm
Chamberlain, Michael Madden, SR Leisure Ltd, Phillip
George Charles Houghton, Derek Owen

(Case C-403/08)

(2008/C 301/34)

Language of the case: English

Referring court

High Court of Justice (Chancery Division)

Parties to the main proceedings

Applicants: Football Association Premier League Ltd, NetMed
Hellas SA, Multichoice Hellas SA

The Commission regards the method used in its decision as
correct. By means of that method, on the basis of a logical

Defendants: QC Leisure, David Richardson, AV Station plc,
Malcolm Chamberlain, Michael Madden, SR Leisure Ltd, Phillip
George Charles Houghton, Derek Owen