Case T-396/08: Action brought on 15 September 2008 — Freistaat Sachsen and Land Sachsen-Anhalt v Commission
Date: 2008-09-15
Institutions: Court of First Instance
Subjects: European Commission, Germany, State aid, action for annulment (EU), common market, control of State aid, equal treatment, fine, postal service, transport company

C 327/30

EN

Official Journal of the European Union

20.12.2008

By its sixth and seventh pleas, relating to wrongful implementa-
tion of the investment aid of EUR 22,9 million and the alleged
unlawful participation of ETVA in the increases in share capital
the applicant submits that
to bring about
approval
that
Article 87(1) EC was infringed as the Commission wrongly
found that measure E10 constituted unlawful State aid, that the
principle of
legitimate expectations was
infringed and that Article 296 EC was not applied.

decision N 401/1997 was misapplied,

the protection of

investment,

that

creditworthiness — the

the misappraisal of
applicant

By its eighth plea, relating to the loans and guarantees which
the applicant received in the relevant period of 1997 to 2001
— which is in addition to the third plea which applies to the
loans and guarantees as
the
regards
applicant's
pleads:
(a) misapplication of the test of a private investor in a market
economy; (b) misapplication of Article 87(2) EC, Article 3 of
Regulation (EC) No 1540/1998 (1) and Article 4 of Directive
90/684/EEC (2); (c) infringement of the principle of proportion-
ality and manifest error of assessment as regards ENAE's credit-
worthiness after its complete privatisation in June 2002, in rela-
tion to calculation of the amounts to be recovered in respect of
the measures under examination, since the contested decision
did not reduce the applicable reference interest rate; and (d) a
mistake of fact in relation to the loans and guarantees which
ETVA granted the applicant, since the contested decision did not
following ETVA's privatisation the
take into account
measures under examination did not include elements of State
aid.

that

(a)

financing of ENAE's
By its ninth plea, relating to unlawful
the applicant
non-military business by its military business,
pleads:
infringement of Articles 296, 298 and 88(1) EC;
(b) misapplication of the private investor test with regard to
military contracts and (c) a failure to state reasons and misap-
praisal as regards determination of the sums to be recovered.

(1) Council Regulation (EC) No 1540/98 of 29 June 1998 establishing

new rules on aid to shipbuilding (OJ 1998 L 202, p. 1).

(2) Council Directive 90/684/EEC of 21 December 1990 on aid to ship-

building (OJ 1990 L 380, p. 27).

Action brought on 15 September 2008 — Freistaat Sachsen
and Land Sachsen-Anhalt v Commission

(Case T-396/08)

(2008/C 327/56)

Language of the case: German

Parties

Applicants: Freistaat Sachsen and Land Sachsen-Anhalt (repre-
sented by: T. Müller-Ibold and T. Graf, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul the first paragraph of Article 1 of Commission Deci-
sion C(2008) 3178 final of 2 July 2008 in State aid case
C 18/2007; and

— order the Commission to pay the costs.

Pleas in law and main arguments

This application for annulment relates to Commission Decision
C(2008) 3178 final of 2 July 2008 in State aid case C 18/2007,
in so far as a large part of the training aid notified, which the
intended to
Freistaat Sachsen and the Land Sachsen-Anhalt
grant to the express courier services company, DHL, is declared
to be incompatible with the common market.

In particular, the Freistaat Sachsen and the Land Sachsen-Anhalt
rely on the following pleas in law in support of their claims.

‘necessary’

the applicants object

to the Commission's refusal

First,
to
approve a large part of the notified aid, since the training aid is
not
for the training measures in question to be
implemented. By introducing a general test of necessity in indi-
vidual cases as a prerequisite for approval of the notified aid, the
Commission contravenes the binding effect of Regulation (EC)
No 68/2001 (1) and infringes the principles of equal treatment
and the protection of legitimate expectations. The assessment
criteria laid down by the Regulation are binding also in respect
of aid above the exemption threshold.

Second, the Commission's approach, which makes approval of
the notified training aid dependent on its necessity,
is also
wrong in law because it unlawfully ignores the positive market
externalities of the training measures supported by the notified
training aid. Such market externalities are in themselves suffi-
cient to justify the compatibility of the notified training aid with
the common market.

Third, the Commission wrongly concludes that the necessary
incentive effect of the aid for the chosen location is lacking. In
fact the training aid is necessary because it was a contributory
factor in DHL's decision on Leipzig/Halle as its choice of loca-
tion and DHL would not otherwise have undertaken any
training there. Moreover,
the Commission's assertion that
comparable training costs would also have arisen in alternative
locations is unfounded.

Fourth, the Commission relied on inappropriate criteria in its
assessment of necessity. In particular, the Commission relies on
subjective criteria, which go beyond objective necessity. More-
over, the Commission carries out its assessment on the basis of
statutory provisions on training measures, which significantly
disadvantages those Member States in which training content is
regulated by law.

20.12.2008

EN

Official Journal of the European Union

C 327/31

Fifth, the contested decision lacks adequate reasoning.

(1) Commission Regulation (EC) No 68/2001 of 12 January 2001 on
the application of Articles 87 and 88 of the EC Treaty to training aid
(OJ 2001 L 10, p. 20); amended by Regulation (EC) No 363/2004
(OJ 2004 L 63, p. 20) and Regulation (EC) No 1976/2006 (OJ 2006
L 363, p. 85).

Decision of the Board of Appeal: Annulment of the decision of the
Opposition Division and rejection of the opposition

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation (EC) No 40/94 in that there is a likelihood of confusion
between the marks at issue.

Action brought on 22 September 2008 — MIP Metro v
OHIM — CBT Comunicación Multimedia (Metromeet)

(Case T-407/08)

(2008/C 327/57)

Language in which the application was lodged: German

Action brought on 30 September 2008 — Sacem v
Commission

(Case T-422/08)

(2008/C 327/58)

Language of the case: French

Parties

Parties

Applicant: MIP Metro Group Intellectual Property GmbH &
Co. KG (Dusseldorf, Germany) (represented by: J.-C. Plate and R.
Kaase, lawyers)

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

Applicant: Société des auteurs, compositeurs et éditeurs de
musique (Sacem) (Neuilly-sur-Seine, France) (represented by: H.
Calvet, lawyer)

Defendant: Commission of the European Communities

Other party to the proceedings before the Board of Appeal of OHIM:
CBT Comunicación Multimedia, SL (Getxo, Spain)

Form of order sought

Form of order sought

— Annul the decision of the First Board of Appeal of OHIM of
12 June 2008 in Case R 387/2007-1 as it is incompatible
with Article 8(1)(b) of Regulation No 40/94 on the Com-
munity trade mark and refuse application No 37 405 29 for
the Community trade mark ‘metromeet’;

— Order OHIM to pay the costs of the proceedings, including

those of the opposition and appeal proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: CBT Comunicación Multi-
media, SL

Community trade mark concerned: Figurative mark ‘Metromeet’ for
goods and services in Classes 9, 16, 35 and 41 — Application
No 3 740 529

Proprietor of the mark or sign cited in the opposition proceedings: MIP
Metro

Mark or sign cited in opposition: The national figurative mark
‘METRO’ and the word mark ‘meeting metro’ for goods and
services in Classes 9, 16, 35 and 41

finds,

— annul the Commission's decision of 16 July 2008 in Case
COMP/C2/38.698 — CISAC in so far as it (i)
in
Article 1, that the applicant had infringed Article 81 of the
EC Treaty and Article 53 of the EEA Agreement by using, in
the membership
its reciprocal representation agreements,
restrictions which were contained in Article 11(II) of the
CISAC model contract, or by de facto applying those
membership restrictions, and (ii) orders it, as a result,
in
Article 4.1, to bring that infringement immediately to an
end, insofar as it has not already done so, and to communi-
cate to the Commission all the measures it has taken for
that purpose;

— annul the Commission's decision of 16 July 2008 in Case
in
COMP/C2/38.698 — CISAC in so far as it (i)
finds,
Article 3, that the applicant infringed Article 81 of
the
EC Treaty and Article 53 of the EEA Agreement by coordi-
nating the territorial delineations in a way which limits a
licence to the domestic territory of each collecting society
and (ii) orders it, as a result, in Article 4.2, within 120 days
of the date of notification of this decision, to bring to an
end the infringement and, within that period of time, to
communicate to the Commission all the measures it has
taken for that purpose;

— annul the Commission's decision of 16 July 2008 in Case
COMP/C2/38.698 — CISAC in so far as it orders the appli-
cant to refrain from repeating any act or conduct described
in Articles 1 and 3, and from any act or conduct having the
same, or similar, object or effect.

Decision of the Opposition Division: Opposition upheld

— order the defendant to pay the costs.