Source: EURLEX
Language: en
Format: md

C 31/18 EN Official Journal of the European Union 8.2.2003

The applicant claims that the Court should:

— annul the contested decision

(a) both in so far as the Commission took formal notice
of the payment of the second tranche of aid to
Alitalia, which was authorised by Decision 97/789/
EC of 15 July 1997 and confirmed by
Decision 2001/723/EC of 18 July 2001, anddecided
not to object to the payment of the third tranche;

(b) and in so far as itestablished thatthe new recapitalisation of Alitalia in the sum of EUR 1 432 million
notified by the Italian authorities on 29 and 30 April
2002 does not constitute State aid;

—
in the alternative, annul the decision on one of the two
grounds mentioned above;

—
order the defendant to pay the costs of the action in any
event.

_Pleas in law and main arguments_

By the contested decision, the Commission took formal notice
of the payment of the second tranche of aid by the Italian
Republic for the restructuring of Alitalia Linee Aeree Italiane
S.p.A., authorised by Decision 97/789/EC of 15 July 1997 and
confirmed by Decision 2001/723/EC of 18 July 2001, and
decided not to object to the payment of the third tranche. It
also decided that the new recapitalisation of Alitalia in the sum
of EUR 1 432 million does not constitute State aid.

In support of its claims the applicant makes the following
submissions:

—
Infringement of Article 88(2) of the Treaty, in that as
Alitalia infringed at least three of the conditions for the
authorisation of aid, the Commission ought to have
allowed competing undertakings to submit observations
before it assessed the compatibility of the payment of the
second and third tranches of aid with the common
market.

—
Infringement and erroneous application of the Community guidelines on Stateaid for rescuing and restructuring firms in difficulty, and a failure to state reasons in
that, in so far as the Commission decided to take notice
of the payment of the second tranche and not to object

to the payment of the third, it did not take into
consideration certain consequences of the unsuccessful
outcome of the restructuring plan andof theinfringement
of certain conditions.

— The aid used to cover Alitalia’s financial losses after the
restructuring plan had expired constituted unauthorised
new aid. In any event, it constituted a misuse of aid, since
it was used to cover financial losses occurring after the
end of the restructuring plan, that is to say for a use
which had not been authorised by the Commission.

—
As regards the defendant’s determination that the new
recapitalisation of Alitalia in the sum of
EUR 1 432 million notified by the Italian authorities on
29 and 30 April 2002 does not constitute State aid, it
should be stated, in particular in the light of the private
investor principle and the absence of analysis of the
prospects of profitability of the undertaking, that the
Commission erred in not considering the following
matters: notwithstanding the existence of option rights,
private shareholders in Alitalia did not subscribe to the
new increase in capital; private banks subscribed only
after the formal subscription of the State and the price of
the new shares was two-thirds of the price of the
contemporaneous increase in the capital subscribed
exclusively by the State by means of the second and third
tranches of aid for restructuring.

**Action brought on 26 November 2002 by Quick Res-**
**taurants SA against Office for Harmonization in the**
**Internal Market (trade marks and designs) (OHIM)**

**(Case T-348/02)**

(2003/C 31/27)

_(Language of the case: French)_

An action against Office for Harmonization in the Internal
Market (trade marks and designs) (OHIM) was brought before
the Court of First Instance of the European Communities on
26 November 2002 by Quick Restaurants SA, established in
Brussels, represented by Louis Van Bunnen, lawyer, with an
address for service in Luxembourg.

8.2.2003 EN Official Journal of the European Union C 31/19

The applicant claims that the Court should:

—
annul paragraph 1 of the operative part of the decision
delivered by the Second Board of Appeal of the OHIM on
17 September 2002;

—
confirm the remainder of the decision;

—
order the defendant to pay the costs.

_Pleas in law and main arguments_

Applicant for the Com- Quick Restaurants SA
munity trade mark:

The Community trade Figurative mark‘QUICK’ — Applimark concerned: cation No 350793, lodged in
respect of goods and services in
Classes 29, 30, 31 and 32 (meat,
fish, coffee, foodstuffs, pre-prepared dishes, prepared drinks)

Decision of the exam- Registration refused
iner:

Decision of the Board of Confirmation of the contested
Appeal: decision in respect of certain
goods in Classes 29, 30 and 31
(that is to say: pre-prepared
dishes) and annulment of the
decision in respect of the other
goods

Grounds of claim: Misapplication of Article 7(1)(c)
of Regulation (EC) No 40/94.
According to the applicant, the
trade mark is capable of identifying the goods concerned.

**Action brought on 28 November 2002 by Deutsche Bahn**
**AG against the Commission of the European Communi-**
**ties**

**(Case T-351/02)**

(2003/C 31/28)

_(Language of the case: German)_

An action against the Commission of the European Communities was brought before the Court of First Instance of the
European Communities on 28 November 2002 by Deutsche
Bahn AG, Berlin, Germany, represented by M. Schütte, lawyer,
with an address for service in Luxembourg.

The applicant claims that the Court should:

—
annul Commission Decision A-2661/D-1565 (2002) of
21 September 2002;

—
order the Commission to pay the costs.

_Pleas in law and main arguments_

The action is directed against the letter in which the Commission rejected the applicant’s complaint of 5 July 2002
contesting the tax exemption for aviation fuel under Paragraph 4(1), Head 3(a), of the German Mineralölsteuergesetz
(Law on taxation of mineral oil, ‘MinöStG’) and declined to
initiate a State-aid investigation of the exemption of aviation
fuel under that provision. The applicant submits that the
Commission erred in law in its decision in concluding that the
unilateral exemption of airline undertakings from the tax on
mineral oil did not constitute aid because the exemption from
the tax was covered by Directive 92/81/EEC of 19 October
1992 ( [1] ).

The applicant submits that the contested decision infringes
essential procedural requirements. It is void because the
Commission did not carefully and comprehensively examine
the facts submitted to it by the applicant in its complaint.
Furthermore, the Commission infringed the obligation to state
reasons under Article 253 EC. It did not indicate in detail why
the submissions of law and of fact by the applicant in the
complaint did not suffice to show the existence of State aid. In
particular, the Commission ought to have stated why a
directive which is based exclusively on Article 93 EC could
lead to the inapplicability of Articles 87 and 88 EC. Moreover,
the contested decision is contradictory and there is considerable doubt as to whether it was lawfully adopted.

The applicant also submits that Paragraph 4(1), Head 3(a),
MinöStG satisfies all the requirements for the application of
Article 87(1) EC. The exemption from the basic obligation to
pay excise duty on mineral oils is a benefit with monetary
value without appropriate counter-performance by the airline
companies and therefore a financial benefit for the purposes
of Article 87(1) EC. There is no doubt that there is a
competitive relationship between the applicant, as operator of
high-speed trains, and airline companies with regard to the
transport of persons between cities and conurbations in
Germany andneighbouring countries, andthe airline companies thereby enjoy a considerable cost advantage over the
applicant as a result of the tax exemption, which leads to a
distortion of competition and affects trade between Member
States.