Case C-545/08: Action brought on 4 December 2008 — Commission of the European Communities v Republic of Poland
Date: 2008-12-04
Institutions: Court of Justice
Subjects: Poland, action for failure to fulfil an obligation, market, provision of services

C 82/10

EN

Official Journal of the European Union

4.4.2009

Action brought on 4 December 2008 — Commission of
the European Communities v Republic of Poland

(Case C-545/08)

(2009/C 82/18)

Language of the case: Polish

Appeal brought on 9 February 2009 by Deepak Rajani
(Dear!Net Online) against the judgment of the Court of
First Instance (Eighth Chamber) delivered on 26 November
2008 in Case T-100/06 Deepak Rajani (Dear!Net Online) v
Office for Harmonisation in the Internal Market (Trade
Marks and Designs)

(Case C-559/08 P)

(2009/C 82/19)

Language of the case: English

Parties

Applicant: Commission of the European Communities (repre-
sented by A. Nijenhuis and K. Mojzesowicz, acting as Agents)

Defendant: Republic of Poland

Parties

Form of order sought

— declare that, by regulating retail tariffs for broadband access
services without carrying out a prior market analysis, the
Republic of Poland has failed to fulfil its obligations under
Articles 16 and 17 of Directive 2002/22/EC (1) in conjunc-
tion with Articles 16 and 27 of Directive 2002/21/EC (2);

— order the Republic of Poland to pay the costs.

Pleas in law and main arguments

By regulating retail tariffs for broadband access services without
carrying out a prior market analysis, the Republic of Poland has
failed to fulfil its obligations under Articles 16 and 17 of Direc-
tive 2002/22/EC in conjunction with Articles 16 and 27 of
Directive 2002/21/EC.

First, the obligations imposed on Telekomunikacja Polska by the
President of the Urząd Komunikacji Elektronicznej, namely the
requirement of submission by the undertaking of retail tariffs
for broadband access services for approval by the national regu-
latory authority and the requirement that the tariffs are deter-
mined on the basis of the costs of providing the services, two
years after the entry into force in Poland of the binding Com-
munity provisions, constitute new obligations and not the main-
tenance in force of existing obligations.

Second, the regulatory obligations concerning retail broadband
access services imposed on Telekomunikacja Polska by the Presi-
dent of the Urząd Komunikacji Elektronicznej cannot, according
to the Commission, be regarded as transitional measures within
the meaning of Article 27 of the Framework Directive, since
Article 17 of Directive 98/10/EC, mentioned in Article 27,
concerns only tariffs for the use of the fixed public telephone
network and fixed public telephone services.

(1) Directive 2002/22/EC of

the
Council of 7 March 2002 on universal service and users' rights
relating to electronic
and services
(Universal Service Directive), OJ 2002 L 108, p. 51.

the European Parliament and of

communications networks

(2) Directive 2002/21/EC of

the
Council of 7 March 2002 on a common regulatory framework for
electronic communications networks and services (Framework Direc-
tive), OJ 2002 L 108, p. 33.

the European Parliament and of

Appellant: Deepak Rajani (Dear!Net Online) (represented by: A.
Kockläuner, Rechtsanwalt)

Other parties to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs), Artoz-Papier AG

Form of order sought

— Set aside in whole the Decision of the Court of First Instance

dated 26 November 2008, Case T-l00/06.

— Order OHIM to pay the costs of the proceedings before the

Court of Justice.

Pleas in law and main arguments

The appellant submits that the contested judgment should be
annulled on the following grounds:

— the Court of First Instance, when rejecting the first plea in
law, misinterpreted Article 43 Section 2 and Section 3 of
the Community Trademark Regulation (CTMR) in conjunc-
tion with Article 4 Section 1 of the Madrid Agreement;

— the Court of First Instance, when rejecting the first plea in
law, infringed Article 6 of the Treaty on the European Union
(Consolidated Version) as well as Article 6 in connection
with Article 14 of the Convention for the Protection of
Human Rights and Fundamental Freedoms (ECHR);

— the Court of First Instance, when rejecting the first plea in
in

infringed Article 10 of Directive 89/104 (EC) (1)

law,
conjunction with Article 1 of Directive 89/104 (EC);

— the Court of First Instance, when rejecting the second plea
taking into
infringed Article 79 CTMR by not

in law,
account that the opponent acted in bad faith;

— the Court of First Instance, when rejecting the second plea
in law, wrongly viewed the trademarks at issue as confus-
ingly similar and thus,
infringed Article 8 Section 1 b)
CTMR;

— the Court of First Instance, when rejecting the second plea
in law, infringed Article 135 Section 4 of the Rules of Proce-
dure of
taking into
account the supportive evidence as annexes to the court
action before it;

the Court of First

Instance by not