CELEX: C2003/031/27
Language: en
Date: 2003-02-08 00:00:00
Title: Case T-348/02: Action brought on 26 November 2002 by Quick Restaurants SA against Office for Harmonization in the Internal Market (trade marks and designs) (OHIM)

C 31/18                EN                          Official Journal of the European Union                                         8.2.2003
The applicant claims that the Court should:                                     to the payment of the third, it did not take into
                                                                                consideration certain consequences of the unsuccessful
                                                                                outcome of the restructuring plan and of the infringement
—     annul the contested decision                                              of certain conditions.
      (a)   both in so far as the Commission took formal notice            —    The aid used to cover Alitalia’s financial losses after the
            of the payment of the second tranche of aid to                      restructuring plan had expired constituted unauthorised
            Alitalia, which was authorised by Decision 97/789/                  new aid. In any event, it constituted a misuse of aid, since
            EC of 15 July 1997 and confirmed by                                 it was used to cover financial losses occurring after the
            Decision 2001/723/EC of 18 July 2001, and decided                   end of the restructuring plan, that is to say for a use
            not to object to the payment of the third tranche;                  which had not been authorised by the Commission.
      (b) and in so far as it established that the new recapitalis-        —    As regards the defendant’s determination that the new
            ation of Alitalia in the sum of EUR 1 432 million                   recapitalisation of Alitalia in the sum of
            notified by the Italian authorities on 29 and 30 April              EUR 1 432 million notified by the Italian authorities on
            2002 does not constitute State aid;                                 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
—     in the alternative, annul the decision on one of the two                  prospects of profitability of the undertaking, that the
      grounds mentioned above;                                                  Commission erred in not considering the following
                                                                                matters: notwithstanding the existence of option rights,
                                                                                private shareholders in Alitalia did not subscribe to the
—     order the defendant to pay the costs of the action in any                 new increase in capital; private banks subscribed only
      event.                                                                    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.
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              Action brought on 26 November 2002 by Quick Res-
also decided that the new recapitalisation of Alitalia in the sum          taurants SA against Office for Harmonization in the
of EUR 1 432 million does not constitute State aid.                            Internal Market (trade marks and designs) (OHIM)
                                                                                                   (Case T-348/02)
In support of its claims the applicant makes the following
submissions:
                                                                                                    (2003/C 31/27)
—     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                                     (Language of the case: French)
      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.
                                                                           An action against Office for Harmonization in the Internal
—     Infringement and erroneous application of the Com-                   Market (trade marks and designs) (OHIM) was brought before
      munity guidelines on State aid for rescuing and restructur-          the Court of First Instance of the European Communities on
      ing firms in difficulty, and a failure to state reasons in           26 November 2002 by Quick Restaurants SA, established in
      that, in so far as the Commission decided to take notice             Brussels, represented by Louis Van Bunnen, lawyer, with an
      of the payment of the second tranche and not to object               address for service in Luxembourg.
 ---pagebreak--- 8.2.2003              EN                         Official Journal of the European Union                                         C 31/19
The applicant claims that the Court should:                              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             —     annul Commission Decision A-2661/D-1565 (2002) of
      17 September 2002;                                                       21 September 2002;
—     confirm the remainder of the decision;
                                                                         —     order the Commission to pay the costs.
—     order the defendant to pay the costs.
Pleas in law and main arguments
                                                                         Pleas in law and main arguments
Applicant for the Com-        Quick Restaurants SA
munity trade mark:
The Community trade           Figurative mark ‘QUICK’ — Appli-
                                                                         The action is directed against the letter in which the Com-
mark concerned:               cation No 350793, lodged in
                                                                         mission rejected the applicant’s complaint of 5 July 2002
                              respect of goods and services in
                                                                         contesting the tax exemption for aviation fuel under Para-
                              Classes 29, 30, 31 and 32 (meat,
                                                                         graph 4(1), Head 3(a), of the German Mineralölsteuergesetz
                              fish, coffee, foodstuffs, pre-pre-
                                                                         (Law on taxation of mineral oil, ‘MinöStG’) and declined to
                              pared dishes, prepared drinks)
                                                                         initiate a State-aid investigation of the exemption of aviation
Decision of the exam-         Registration refused                       fuel under that provision. The applicant submits that the
iner:                                                                    Commission erred in law in its decision in concluding that the
                                                                         unilateral exemption of airline undertakings from the tax on
Decision of the Board of      Confirmation of the contested              mineral oil did not constitute aid because the exemption from
Appeal:                       decision in respect of certain             the tax was covered by Directive 92/81/EEC of 19 October
                              goods in Classes 29, 30 and 31             1992 (1).
                              (that is to say: pre-prepared
                              dishes) and annulment of the
                              decision in respect of the other
                              goods                                      The applicant submits that the contested decision infringes
                                                                         essential procedural requirements. It is void because the
Grounds of claim:             Misapplication of Article 7(1)(c)          Commission did not carefully and comprehensively examine
                              of Regulation (EC) No 40/94.               the facts submitted to it by the applicant in its complaint.
                              According to the applicant, the            Furthermore, the Commission infringed the obligation to state
                              trade mark is capable of ident-            reasons under Article 253 EC. It did not indicate in detail why
                              ifying the goods concerned.                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 consider-
                                                                         able doubt as to whether it was lawfully adopted.
Action brought on 28 November 2002 by Deutsche Bahn
AG against the Commission of the European Communi-
                               ties
                                                                         The applicant also submits that Paragraph 4(1), Head 3(a),
                        (Case T-351/02)                                  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
                        (2003/C 31/28)                                   value without appropriate counter-performance by the airline
                                                                         companies and therefore a financial benefit for the purposes
                  (Language of the case: German)                         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
An action against the Commission of the European Communi-                Germany and neighbouring countries, and the airline compani-
ties was brought before the Court of First Instance of the               es thereby enjoy a considerable cost advantage over the
European Communities on 28 November 2002 by Deutsche                     applicant as a result of the tax exemption, which leads to a
Bahn AG, Berlin, Germany, represented by M. Schütte, lawyer,             distortion of competition and affects trade between Member
with an address for service in Luxembourg.                               States.