Case T-440/08: Action brought on 1 October 2008 — 1-2-3.TV v OHIM — Zweites Deutsches Fernsehen and Televersal Film- und Fernseh-Produktion (1-2-3.TV)
Date: 2008-10-01
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, Germany, action for annulment (EU), audiovisual industry, cultural transmission, trade-mark law

C 327/34

EN

Official Journal of the European Union

20.12.2008

Action brought on 30 September 2008 — Agapiou
Joséphidès v Commission and Education, Audiovisual and
Culture Executive Agency

to the documents and that its decision of 1 August 2008 was
taken in violation of Regulation No 1049/2001 (1) and the
Commission Rules of Procedure.

(Case T-439/08)

(2008/C 327/61)

Language of the case: French

Parties

Applicant: Kalliope Agapiou Joséphidès (Nicosia, Cyprus) (repre-
sented by: C. Joséphidès, lawyer)

Defendants: Commission of
Education, Audiovisual and Culture Executive Agency

the European Communities and

Form of order sought

— annul

the decision of

the Education, Audiovisual and
Culture Executive Agency (‘the Agency’) of 1 August 2008,
by which the Agency, acting under the Commission's super-
vision, denied the applicant access, requested by her letter of
3 March 2008, to certain documents in file No 07/0122
relating to the award of a Jean Monnet Centre of Excellence
to the University of Cyprus;

— annul Commission Decision C(2007) 3749 of 8 August
2008 relating to the individual decision to award subsidies
within the framework of the Lifelong Learning Programme,
Jean Monnet sub-programme;

— order the Agency and the Commission to pay the applicant's

costs in these proceedings.

Pleas in law and main arguments

By this action, the applicant seeks the annulment, first, of the
decision of the Education, Audiovisual and Culture Executive
Agency of 1 August 2008 denying her access to documents
relating to the award of a Jean Monnet Centre of Excellence to
the University of Cyprus and, second, of Commission Decision
C(2007) 3749 of 8 August 2008 relating to an individual deci-
sion to award subsidies within the framework of the Lifelong
Learning Programme,
to the
extent that it recommends the award of a subsidy to the Univer-
sity of Cyprus for the creation of a Jean Monnet Centre of Excel-
lence.

Jean Monnet sub-programme,

In support of her application for annulment of the decision of
the Agency of 1 August 2008, she claims that the Agency
infringed her personal right, as derived, in particular, from the
principle of transparency contained in Article 1, second para-
graph, and Article 6 TEU, Article 255 EC and the EU Charter of
Fundamental Rights, to have access to certain documents in so
far as her name was used by third parties (the University of
Cyprus) in an administrative application file, with the aim of
deriving benefit from it without her consent. She claims that in
those circumstances, she is entitled to verify the precise content
and/or the accuracy of
the personal data and the aim and
context of its use.

In addition, she submits that the Director of the Agency is not
competent to decide on her confirmatory application for access

None the less, if the Court of First Instance were to consider
that the Director of the Agency was competent to adopt the
contested decision, the applicant claims that that decision was
several provisions of Regulation
taken in violation of
in particular Articles 7(1), 8(1) and 15(1).
No 1049/2001,
the Agency also misinterpreted
According to the applicant,
several other provisions of the same regulation,
in particular
Articles 4(4), 4(5), 4(1)(b) and 4(2) and misapplied the principle
of transparency and the concept of overriding public interest.
The applicant also puts forward a plea alleging that
the
contested decision is insufficiently reasoned.

In support of her application for annulment of Commission
Decision C(2007) 3749 of 8 August 2008, the applicant claims
that the Commission erred in failing to verify whether the appli-
cant had consented to her personal data appearing in the appli-
cation form submitted to the Commission by the University of
Cyprus. She takes the view that the Commission ought to have
found a substantial
irregularity in the draft submitted and
revoked its decision or taken other necessary measures.

The applicant also submits that the Commission erred in its
analysis of the eligibility criteria in respect of the application
submitted by the University of Cyprus.

(1) Regulation (EC) No 1049/2001 of the European Parliament and of
the Council of 30 May 2001 regarding public access to European
Parliament, Council and Commission documents (OJ 2001 L 145,
p. 43).

Action brought on 1 October 2008 — 1-2-3.TV v OHIM —
Zweites Deutsches Fernsehen and Televersal Film- und
Fernseh-Produktion (1-2-3.TV)

(Case T-440/08)

(2008/C 327/62)

Language in which the application was lodged: German

Parties

Applicant: 1-2-3.TV GmbH (Unterföhring, Germany)
(repre-
sented by: V. von Bomhard, A. Renck, T. Dolde und E. Nicolás
Gómez, lawyers)

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

Other parties to the proceedings before the Board of Appeal of OHIM:
Zweites Deutsches Fernsehen (Mainz, Germany) and Televersal
Film- und Fernseh-Produktion GmbH (Hamburg, Germany)

20.12.2008

EN

Official Journal of the European Union

C 327/35

Form of order sought

— Annul the decision of the First Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 30 June 2008 (Case R 1076/2007-1); and

(a) the measure adopted by Germany in respect of capital
contributions for the construction of a new southern
runway and related airport
infrastructure at Leipzig/
Halle airport constitutes State aid for the purposes of
Article 87(1) EC; and

— order the defendant to pay the costs.

(b) this ‘State aid’ amounts to EUR 350 million;

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: Word mark ‘1-2-3.TV’
for
services in classes 35, 38 and 41 — Application No 3 763 133

Proprietor of the mark or sign cited in the opposition proceedings:
Zweites Deutsches Fernsehen and Televersal Film- und Fernseh-
Produktion GmbH

Mark or sign cited in opposition: National figurative mark ‘1, 2
ODER 3 ZDF-ORF-SFDRS’ for goods and services in classes 3,
5, 9, 12, 14, 16, 18, 21, 24, 25, 26, 27, 28, 29, 30, 32, 35,
38, 41 and 42

— order the Commission to pay the applicants' costs pursuant
to Article 87(2) of the Rules of Procedure of the Court of
First Instance.

Pleas in law and main arguments

The applicants object to the findings in the first part of Article 1
of Commission Decision C (2008) 3512 final of 23 July 2008
Measure No C48/2006 (ex N227/2006) Germany DHL and
Leipzig Halle Airport that the capital contributions granted by
Germany to Leipzig/Halle airport represent State aid to the
airport and that that aid amounts to EUR 350 million.

Decision of the Opposition Division: Opposition partly upheld

The applicants rely on seven pleas in law in support of their
claims:

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94,
there being no likelihood of confusion
between the marks in opposition on account of the differing
overall impression of the marks.

Action brought on 6 October 2008 — Freistaat Sachsen
and Land Sachsen-Anhalt v Commission

(Case T-443/08)

(2008/C 327/63)

Language of the case: German

Parties

Applicants: Freistaat Sachsen and Land Sachsen-Anhalt (repre-
sented by: U. Soltész, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annul Article 1 of the Commission's decision of 23 July
2008 pursuant to the first paragraph of Article 231 EC in
so far as the Commission finds that

First, the applicants submit that the rules on State aid are not
even applicable because the airport is not an undertaking within
the meaning of those rules, so far as the expansion of regional
airport infrastructure is concerned.

Second, Flughafen Leipzig/Halle GmbH is a State-owned single
purpose vehicle with an organisational structure governed by
private law which, accordingly, as is generally acknowledged,
cannot be deemed to be a recipient of aid in so far as the State
provides it with the resources required in order to perform its
functions.

Third, the contested decision is inherently contradictory, in that
Flughafen Leipzig/Halle GmbH is simultaneously treated in the
decision both as recipient and donor of aid.

Fourth, the application of the guidelines published in 2005 (1)
to facts which obtained before the guidelines were published is
contrary to the prohibition on retroactivity, the requirement of
legal certainty, the protection of legitimate expectations and the
principle of equality. In the applicant's view, only the Commis-
sion's 1994 guidelines (2) were applicable.

In addition, the applicants state that the new guidelines are
contrary to primary Community law, being factually inapplic-
able and inherently contradictory where regional airport opera-
tors do not have the status of an undertaking. The 2005 guide-
lines also made the construction of airports subject to the rules
on aid, whereas, in the previous guidelines of 1994, this activity
was expressly excluded from the application of the State aid
rules. In view of the diametrically opposed content of the old
and the new guidelines, and the non-revocation of
the
1994 provisions, it is unclear how the financing of airport infra-
structure is intended to be legally assessed.