Case T-571/08: Action brought on 22 December 2008 — Germany v Commission
Date: 2008-12-22
Institutions: Court of First Instance
Subjects: European Commission, Germany, access to information, action for failure to fulfil an obligation, disclosure of information, postal service

7.3.2009

EN

Official Journal of the European Union

C 55/41

Decision of the Cancellation Division: Partly upheld the request for
a declaration of invalidity

In the first, second and third pleas, the applicant submits that
the decision should be annulled on the grounds of an infringe-
ment of essential rules as to form and procedure, in that

the Board of Appeal: Allowed the appeal

Decision of
in case
R 946/2007-2; Annulled the contested decision rejecting the
cancellation
case
R 1151/2007-2.

request; Dismissed

appeal

the

in

Pleas in law: Infringement of Articles 52(3), 8(1)(b) of Council
Regulation 40/94, as well as of general principles of trade mark
law as the Board of Appeal wrongly ruled that the applicant
gave its consent to the registration of the Community trade
mark subject of the application for a declaration of invalidity
and, as a result, failed to examine whether a likelihood of confu-
sion between the trade marks concerned exists.

Action brought on 22 December 2008 — Deutsche Post v
Commission

(Case T-570/08)

(2009/C 55/73)

Language of the case: German

Parties

Applicant: Deutsche Post AG (Bonn, Germany) (represented by:
J. Sedemund and T. Lübbig, lawyers)

Defendant: Commission of the European Communities

— the requirements as to the valid setting of a time-limit and
as to a ‘reminder, allowing an appropriate additional period’
in accordance with Articles 5(2) and 10(3) of Regulation
No 659/1999 were not satisfied;

— the information injunction exhibits serious failings in regard
infringes

to the obligation to state reasons and thus
Article 253 EC;

— the Commission failed,

contrary to Articles 287 EC
and 10 EC, to give the Federal Government and the appli-
cant an opportunity to submit comments on the protection
of the applicant's business secrets.

By its fourth plea in law, the applicant claims that the contested
decision should, moreover, be annulled on the grounds of an
infringement of substantive Community law, because the use of
the requested data concerning costs and revenues in respect of
the period from 1 January 1995 to 31 December 2007 for the
purposes of examining the ‘financial compensation’ conflicts
with the 2005 Community Framework and with the division of
powers between Member States and the Commission; infringes
Articles 86(2) EC and 87(1) EC in conjunction with the princi-
ples of proportionality, legal certainty and the Community-law
prohibition of discrimination; and, finally,
is manifestly inap-
propriate for
in terms of State-aid law of
the assessment
pension and liability provisions.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article [88 EC] (OJ 1999
L 83, p. 1).

Form of order sought

Action brought on 22 December 2008 — Germany v
Commission

— Annul the decision of the Commission of the European
Communities of 30 October 2008 concerning the informa-
tion injunction in the proceedings ‘State aid C-36/2007 —
State aid to Deutsche Post AG’;

— order the defendant to pay the costs.

Pleas in law and main arguments

in State

The action is directed against the decision of the Commission of
the European Communities (C (2008) 6468) of 30 October
2008 by which,
aid procedure C 36/2007
(ex NN 25/2007), the Commission required Germany, pursuant
to Article 10(3) of Regulation (EC) No 659/1999 (1), to send all
the documents, information and data required in order to assess
the costs and revenues of Deutsche Post in the period from
1989 to 2007.

(Case T-571/08)

(2009/C 55/74)

Language of the case: German

Parties

Applicant:
M. Lumma and B. Klein)

Federal Republic of Germany (represented by:

The applicant raises four pleas in law.

Defendant: Commission of the European Communities

C 55/42

EN

Official Journal of the European Union

7.3.2009

Form of order sought

Action brought on 17 December 2008 — TF1 v
Commission

— Annul the Commission's decision of 30 October 2008 in
the proceedings ‘State aid C 36/2007 — State aid to
Deutsche Post AG’ concerning the information injunction;

— order the defendant to pay the costs.

(Case T-573/08)

(2009/C 55/75)

Language of the case: French

Pleas in law and main arguments

in State

The action is directed against the decision of the Commission of
the European Communities (C (2008) 6468) of 30 October
2008 by which,
aid procedure C 36/2007
(ex NN 25/2007), the Commission required Germany, pursuant
to Article 10(3) of Regulation (EC) No 659/1999 (1), to send all
the documents, information and data required in order to assess
the costs and revenues of Deutsche Post in the period from
1989 to 2007.

The applicant raises two pleas in law.

Parties

Applicant: Télévision française 1 SA (TF1) (represented by: J.-P.
Hordies and C. Smits, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul the decision of the Commission of 16 July 2008 in
Case N 279/2008-France (Capital endowment for France
Télévisions);

— order the Commission to initiate the formal

investigation

procedure under Article 88(2) EC in respect of State aid;

By the first plea in law, the applicant claims that the information
injunction infringes essential rules as to form.

— order the Commission to pay the costs.

— The requirements as to the valid setting of a time-limit and
as to a ‘reminder, allowing an appropriate additional period’
in accordance with Articles 5(2) and 10(3) of Regulation
No 659/1999 were not satisfied.
the
applicant observes that the period allowed in the informa-
tion injunction itself was disproportionate.

In the alternative,

— Furthermore, the information injunction does not safeguard
the protection enshrined in Article 287 EC of Deutsche Post
AG's business secrets, since the data would presumably be
passed to an external undertaking — which might also be
working for competitors of Deutsche Post AG — for
analysis, and the Commission refuses to provide further
details in that regard.

By its second plea in law, the applicant claims that the informa-
tion injunction also infringes Articles 87(1) EC and 86(2) EC in
conjunction with the principles of proportionality and legal
certainty, since the data requested are not necessary for the
assessment in terms of State-aid law of any of the three State
measures at issue in the proceedings.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article [88 EC] (OJ 1999
L 83, p. 1).

Pleas in law and main arguments

The applicant applies for the annulment of Commission Deci-
sion C(2008) 3506 final of 16 July 2008, by which the
Commission had held State aid in the form of a capital endow-
ment of EUR 150 million in favour of France Télévisions to be
compatible with the common market. The applicant requests in
that context the initiation of the formal investigation procedure
in accordance with Article 88(2) EC.

its application,
In support of
substance of the case, two pleas:

the applicant asserts, on the

— based on the finding that there were serious difficulties in
response to which the Commission should have been
investigation procedure in
required to initiate the formal
accordance with Article 88(2) EC, those serious difficulties
being demonstrated by (i) the fact that the decision was
materially inaccurate, (ii) the inadequacy of the information
at the Commission's disposal and (iii) the unusually short
duration, as well as the circumstances, of the preliminary
phase of investigation;

— relating to a failure to state grounds,

in so far as the
Commission did not collect all the necessary information
and/or did not take into consideration the information at its
disposal and in so far as the Commission's reasoning in
paragraph 23 of the contested decision could depart from
its previously adopted position without
the Commission
nonetheless justifying that departure.