CELEX: C2003/070/47
Language: en
Date: 2003-03-22 00:00:00
Title: Case T-20/03: Action brought on 22 January 2003 by KAHLA/Thüringen Porzellan GmbH against the Commission of the European Communities

22.3.2003              EN                          Official Journal of the European Union                                          C 70/29
Decision of the Board of       Appeal upheld and opposition                In support of its application, the applicant submits a violation
Appeal:                        dismissed in its entirety                   of Article 81 EC Treaty and a serious error of assessment in
                                                                           fact and in law, as well as an infringement of essential
Grounds of claim:              Misapplication of Article 8(1)(b)           procedural requirements, such as the duty to state reasons.
                               of Regulation (EC) No 40/94 (like-          According to the applicant, the Commission has not proven
                               lihood of confusion and associ-             to the requisite legal standard that the applicant agreed with
                               ation between the trade marks at            Nintendo to hinder parallel trade.
                               issue)
                                                                           The applicant furthermore submits a breach of the principles
                                                                           of proper administration, such as the principle of equality and
                                                                           the principle of proportionality. In this respect, the applicant
                                                                           also invokes a violation of the duty to state reasons. The
                                                                           applicant states that the Commission needs to have regard to
                                                                           the gravity and the duration of the infringement when
                                                                           establishing the fine. According to the applicant, the Com-
                                                                           mission has not acted in accordance with these principles
                                                                           because there is no convincing evidence that the applicant
Action brought on 17 January 2003 by CD-Contact Data                       entered into an agreement with Nintendo and, in any event,
  against the Commission of the European Communities                       the alleged infringements by the applicant had a much more
                                                                           limited impact and shorter duration than the infringements of
                                                                           Nintendo and its other distributors.
                          (Case T-18/03)
                          (2003/C 70/46)
                   (Language of the case: English)
                                                                           Action brought on 22 January 2003 by KAHLA/Thüringen
                                                                           Porzellan GmbH against the Commission of the European
                                                                                                     Communities
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                                          (Case T-20/03)
European Communities on 17 January 2003 by CD-Contact
Data, Burglengenfeld, Germany, represented by Mr J. K. de                                           (2003/C 70/47)
Pree and Mr R. Wesseling, Lawyers.
                                                                                             (Language of the Case: German)
The applicant claims that the Court should:
—     annul the Commission’s decision of 30 October 2002 in                An action against the Commission of the European Communi-
      Cases COMP/35.587 PO Video games, COMP/35.706                        ties was brought before the Court of First Instance of the
      PO Nintendo Distribution and COMP/36.321 Omega-                      European Communities on 22 January 2003 by KAHLA/
      Nintendo in as far as addressed to the applicant (in                 Thüringen Porzellan GmbH, having its registered office in
      particular articles 1 and 3) in whole or in part;                    Kahla (Germany), represented by M. Schütte and S. Zühlke,
                                                                           Rechtsanwälte.
—     order the Commission to pay the costs
                                                                           The applicant claims that the Court should:
                                                                           (1) Set aside Article 1(2) of Commission Decision
                                                                                 C(2002)4040 final of 30 October 2002 concerning State
Pleas in law and main arguments                                                  aid provided by Germany for Kahla Porzellan GmbH and
                                                                                 KAHLA/Thüringen Porzellan GmbH (Proceeding C 62/
                                                                                 2000) in so far as that provision adversely affects the
The applicant is active in the fields of distributing and                        applicant;
republishing entertainment software. Between April and
December 1997, the applicant acted as exclusive distributor                (2) Set aside Article 2 in so far as it relates to the measures
for Nintendo products in Belgium and Luxemburg. The                              referred to in point (1);
Commission alleges that the applicant entered into an agree-
ment and/or restricted practice with Nintendo to restrict                  (3) Order the Commission to pay the costs of the proceed-
parallel export.                                                                 ings.
 ---pagebreak--- C 70/30               EN                         Official Journal of the European Union                                       22.3.2003
Pleas in law and main arguments                                          The applicant did not receive a number of the measures listed.
                                                                         The demand for repayment of aid which was not granted thus
                                                                         patently infringes substantive law.
The applicant is a porcelain-manufacturing undertaking based
in Kahla, Thüringen (Thuringia). As the investor which made
the highest offer, it acquired machinery, plant and property
from the receiver responsible for administering the assets
of Kahla Porzellan GmbH. In its contested decision, the
Commission classified a number of measures in favour of
Kahla Porzellan GmbH and the applicant as constituting aid
and declared them to be incompatible with the Common                     Action brought on 30 January 2003 by Antonio Aresu
Market.                                                                    against the Commission of the European Communities
                                                                                                   (Case T-24/03)
By its action, the applicant takes issue in particular with the
order for repayment of the investment subsidy of 2,5 million
                                                                                                  (2003/C 70/48)
DEM, the order for repayment of allegedly ‘de minimis’ aid
payments and that for repayment of grants made for the
implementation of job-creation measures under Para-                                          (Language of the case: Italian)
graph 249h of the Arbeitsförderungsgesetz (Law on the
Promotion of Employment) (‘AFG’). In its action it alleges
infringement of the EC Treaty, breach of fundamental prin-
ciples of Community law and manifest errors of fact and of               An action against the Commission of the European Communi-
appraisal.                                                               ties was brought before the Court of Justice of the European
                                                                         Communities on 30 January 2003 by Antonio Aresu rep-
                                                                         resented by Sergio Diana, acting as Agent, with an address for
The applicant contends that the order for repayment of                   service in Luxembourg.
the investment subsidy and of the grants paid out under
Paragraph 249h AFG is contrary to the EC Treaty. The
investment subsidy was granted from an approved programme                The applicant claims that the Court should:
and, with regard to measures under Paragraph 249h AFG, the
Commission expressly determined in 1994 that these did not               —     annul the following two decisions:
constitute aid. In both cases, therefore, the rules applicable to
existing aid applied. In its decision, however, the Commission                 (a)   the express decision of the appointing authority
went beyond an examination of whether the particular con-                            of 29 August 2002 recorded in the note from
ditions of the programmes had been complied with and                                 Mr T. Lennon D(2002)687 of 2 September 2002,
retroactively applied more stringent conditions to those pro-                        received on 4 September 2002, announcing the
grammes than were contained in the programmes or in the                              rejection of the applicant’s application for vacant
conditions of approval which the Commission had imposed.                             post COM/059/02 and the awarding of that post to
The Commission is thereby in breach of Articles 87 EC and 88                         Mr M. Scannell;
EC and in infringement of the principle of legal certainty.
                                                                               (b) the implied decision of the appointing authority of
                                                                                     17 January 2003 rejecting the complaint made by
The applicant argues further that the Commission has infringed                       the applicant on 17 September 2002 against that
the fundamental principle of the protection of legitimate                            decision.
expectations by failing to take account of the fact that the
publication by the Commission itself in the Official Journal of          —     order the Commission to pay the costs of the proceedings.
the EC of its formal approval of the programme for guarantee-
ing investment and the rules in Paragraph 249h AFG gives no
indication of the more stringent restrictions which it has
applied within the context of the contested decision. The                Pleas in law and main arguments
applicant was thus entitled to rely on the expectation that both
programmes would be applied in the form as published and
approved by the Commission. The demand for repayment,                    The applicant in this case contests the rejection of his
which runs counter to this expectation, is patently unlawful.            application for a post as head of unit in the Health and
                                                                         Consumer Protection Directorate-General.
The applicant submits further that the Commission’s findings
contain fundamental errors of fact and a number of manifest              In support of his claims the applicant submits that the
errors of appraisal. First, there is an error of appraisal in the        contested decisions stated no grounds, in breach of the second
                                                                         paragraph of Article 25 of the Staff Regulations.
classification of the applicant as an undertaking in difficulty.
The demand for repayment of the ‘de minimis’ aid payments
also contains manifest and significant errors as to the facts.