CELEX: C2004/059/51
Language: en
Date: 2004-03-06 00:00:00
Title: Case T-443/03: Action brought on 31 December 2003 by Retecal Sociedad Operadora de Telecomunicaciones de Castilla y León S.A., Euskaltel S.A., Telecable de Asturias S.A., R Cable y Telecomunicaciones Galicia S.A. and Tenaria S.A.

C 59/32                EN                        Official Journal of the European Union                                        6.3.2004
2.    order the defendant to pay interest at the statutory rate          Action brought on 31 December 2003 by Retecal Socie-
      of 8 % on all amounts due;                                         dad Operadora de Telecomunicaciones de Castilla y León
                                                                         S.A., Euskaltel S.A., Telecable de Asturias S.A., R Cable y
                                                                              Telecomunicaciones Galicia S.A. and Tenaria S.A.
3.    order the defendant to pay the costs.
                                                                                                 (Case T-443/03)
                                                                                                  (2004/C 59/51)
Pleas in law and main arguments
                                                                                           (Language of the case: Spanish)
The applicants claim to have suffered damage as a result of
Regulation No 2362/98 (1) in so far as bananas from Ecuador
do not qualify for the quota provided for in respect of                  An action against the Commission of the European Communi-
traditional ACP bananas and as a result of the ‘country                  ties was brought before the Court of First Instance of the
allocation’ system.                                                      European Communities on 31 December 2003 by Retecal
                                                                         Sociedad Operadora de Telecomunicaciones de Castilla y
                                                                         León S.A., established in Valladolid (Spain), Euskaltel S.A.,
                                                                         established in Zamudio, (Bizkaia, Spain), Telecable de Asturias,
                                                                         established in Oviedo (Spain), R Cable y Telecomunicaciones
The applicants submit that, despite the Community’s express              Galicia S.A., established in La Coruña (Spain) and Tenaria S.A.,
intention to comply with the GATS and GATT 1994 Agree-                   established in Cordovilla (Navarra, Spain), represented by José
ments from 1 January 1999, as determined and ordered by the              Maria Jiménez Laiglesia, lawyer.
WTO dispute-resolution bodies, there has been a sufficiently
serious breach of superior rules of law as a result of Regulation
No 2362/98 and Regulation No 1637/98 (2). According to the
applicants, the amendments made by those regulations, which              The applicants claim that the Court should:
were enforced up to the end of 2001, infringe the GATS and
GATT Agreements, Community law, the principle of the                     —     annul the decision of 21 October 2003; and
protection of legitimate expectations, the principle of good
faith, international customary law as codified in the Vienna
                                                                         —     order the Commission to pay all the costs arising from
Convention on the Law of Treaties and are at variance with
                                                                               the proceedings.
the binding effect of the outcome of a dispute resolution
procedure which has been incorporated in an international
agreement concluded by the Community.
                                                                         Pleas in law and main arguments
The applicants also allege infringement of the principle of
equal treatment and submit that the Commission exceeded its              The present action is brought against the decision of the
powers of implementation by enforcing, up to the end                     Commission to take no further action on the complaint
of 2001, Regulation No 2362/98 containing rules on the                   submitted by the applicants relating to the alleged failure by
implementation of Regulation No 404/93 which are contrary                the Kingdom of Spain to fulfil its obligations under Article 9(8)
to the GATS and GATT 1994 Agreements. Finally, the                       of the Council Regulation (EEC) No 4064/89 of 21 December
applicants allege infringement of the protection of legitimate           1989 (1) on the control of concentrations between undertak-
expectations and of the general legal principle of ‘patere legem         ings, with respect to the merger between VIA DIGITAL Y
quam ipse fecisti’ as a result of the failure to grant import            SOGECABLE (Case No COMP/M.2845 Sogecable/Canal Satél-
licences to the actual importer as declared to the Council.              ite Digital/Vía Digital) and conditions applied to that merger
                                                                         by the Spanish authorities. The applicants submit that that
                                                                         article lays down an obligation to carry out investigation and
                                                                         verification, which, in the present case, the Commission has
(1) Commission Regulation (EC) No 2362/98 of 28 October 1998             failed to fulfil.
    laying down detailed rules for the implementation of Council
    Regulation (EEC) No 404/93 regarding imports of bananas into
    the Community (Text with EEA relevance) (OJ 1998 L 293, p. 32).
(2) Council Regulation (EC) No 1637/98 of 20 July 1998 amending          The applicants recall that on 22 April 2003, they sent a letter
    Regulation (EEC) No 404/93 on the common organisation of the         to the Commission in which they submitted, essentially, that
    market in bananas (OJ 1998 L 210, p. 28).                            the conditions adopted by the Spanish authorities were not
                                                                         capable of maintaining effective competition in the sector
                                                                         concerned, in that they ensured that SOGECABLE would
                                                                         remain in a monopoly situation, given what was stated by the
                                                                         Commission in the referral decision.
 ---pagebreak--- 6.3.2004              EN                          Official Journal of the European Union                                              C 59/33
In support of their claims the applicants submit that the                       as it refused the application for registration of VELOCITY
Commission, having only limited discretion, was obliged, in                     as a trade mark on the basis of Articles 7(1)(b) and (c) of
accordance with the principle of sound administration, to deal                  the CTMR;
diligently and impartially with the complaint in this case. They
argue that in that respect, that the Commission’s discretion in           —     order the Office to bear its own costs and pay those of
the matter at issue must correspond to the objective of                         the Applicant.
establishing a scheme which ensures that competition is not
distorted in the common market, so that the Member States
do not adopt, in favour of one undertaking, measures which
may give rise to the elimination or restriction of effective
competition in the market at issue.                                       Pleas in law and main arguments
                                                                          Trade mark concerned:           Verbal trade mark ‘VELOCITY’ —
This application also takes account of the fact that the                                                  Application No 1661842.
Commission itself has assessed the conditions of competition
in the referral decision, so as to include all the criteria which         Products or services:           Products and services in classes 9,
may be used for the purpose of determining whether the                                                    16, 37 and 42.
measures adopted maintain or preserve competition in the
markets at issue, and also that it has accepted commitments
                                                                          Challenged        Decision      Refusal of registration by the
which are substantially different in another current and very
                                                                          before the Board of             examiner.
similar case (M.2876 Newscorp/telepiú), and that therefore it
                                                                          Appeal:
cannot be claimed that the measures adopted by the Spanish
Government maintain or preserve competition in the markets
concerned.                                                                Pleas in law:                   Infringement of Article 7 (1) (b)
                                                                                                          and (c) of Regulation No 40/94.
(1) OJ L 395 of 30.12.89, p. 1.
                                                                          Action brought on 7 January 2004 by Simonds Farsons
                                                                          Cisk Plc., against the Office for Harmonisation in the
                                                                              Internal Market (Trade Marks and Designs) (OHIM)
Action brought on 2 January 2004 by Electronics for
Imaging, Inc., against Office for Harmonisation in the                                               (Case T-3/04)
    Internal Market (Trade Marks and Designs) (OHIM)
                                                                                                    (2004/C 59/53)
                          (Case T-1/04)
                                                                          (Language of the case to be determined pursuant to article 131(2) of
                         (2004/C 59/52)                                   the Rules of Procedure — language in which the case was submitted:
                                                                                                        English)
                  (Language of the case: English)
                                                                          An action against the Office for Harmonisation in the Internal
                                                                          Market (Trade Marks and Designs) (OHIM) was brought before
                                                                          the Court of First Instance of the European Communities on
An action against the Office for Harmonisation in the Internal            7 January 2004 by Simonds Farsons Cisk Plc., Mriehel, Malta,
Market (Trade Marks and Designs) (OHIM) was brought before                represented by Ms M. Bagnall and Mr I. Wood, Solictors and
the Court of First Instance of the European Communities on                Mr R. Hacon, Barrister. SA Spa Monopole, Compagnie fermière
2 January 2004 by Electronics for Imaging, Inc., Foster City,             de Spa, en abrégé SA Spa Monopole NV., was also a party to
California, USA, represented by Mr S. Malynicz, Barrister.                the proceedings before the Board of Appeal.
The applicant claims that the Court should:                               The applicant claims that the Court should:
—     annul the decision of the Fourth Board of Appeal dated              —     annul the Decision of the First Board of Appeal of
      25 August 2003, case number R 0793/2002-4 in so far                       4 November 2003;