CELEX: C2003/044/63
Language: en
Date: 2003-02-22 00:00:00
Title: Case T-361/02: Action brought on 5 December 2002 by Deutsche Bahn AG against the Commission of the European Communities

22.2.2003                EN                         Official Journal of the European Union                                          C 44/33
accorded the Italian postal operator preferential treatment vis-            The applicant’s other pleas in law and arguments are the same
à-vis the applicants, which are in competition with it in the               as those set out in Case T-351/02.
very sector of postal services which have been opened up to
competition.
( 1) OJ L 282, 19.10.2002, p. 29.
( 2) Commission Decision on measures implemented by the Federal
     Republic of Germany for Deutsche Post AG (OJ L 247, 14.9.2002,
     p. 27).
                                                                            Action brought on 5 December 2002 by Muswellbrook
                                                                            Limited against the Office for Harmonisation in the
                                                                                                Internal Market (OHIM)
Action brought on 5 December 2002 by Deutsche Bahn
AG against the Commission of the European Communi-                                                  (Case T-362/02)
                                  ties
                                                                                                     (2003/C 44/64)
                            (Case T-361/02)
                            (2003/C 44/63)                                                    (Language of the case: Spanish)
                    (Language of the case: German)
                                                                            An action against the Office for Harmonisation in the Internal
An action against the Commission of the European Communi-                   Market (OHIM) was brought before the Court of First Instance
ties was brought before the Court of First Instance of the                  of the European Communities on 5 December 2002 by
European Communities on 5 December 2002 by Deutsche                         Muswellbrook Limited, established in Dublin (Ireland), rep-
Bahn AG, Berlin, Germany, represented by M. Schütte, lawyer,                resented by J. Casulá Oliver, lawyer.
with an address for service in Luxembourg.
The applicant claims that the Court should:                                 The applicant claims that the Court should:
—      find that the Commission infringed its obligations under
       Article 87 and Article 88(1) EC in failing to adopt a                —    declare incompatible with Regulation (EC) No 40/94 on
       decision on the matters submitted to it by the applicant                  the Community trade mark, in particular Article 15(2)(a)
       in its complaint of 5 July 2002, and in any event, in                     and/or Article 42(2) and (3) thereof, the decision of the
       failing to initiate an investigation of State aid;                        First Board of Appeal of the OHIM of 30 September
                                                                                 2002 in case No R 16/2000-1, inasmuch as it declares
—      order the Commission to pay the costs.                                    that the opponent has failed to prove genuine use in the
                                                                                 Community of the Spanish trade mark No 88222 to
                                                                                 distinguish ready-to-wear and other items of clothing in
                                                                                 Class 25 during the five years preceding the publication
Pleas in law and main arguments                                                  of the application for a Community trade mark;
The action has the same origin as that in Case T-351/02                     —    annul that decision in its entirety;
(Deutsche Bahn v Commission).
                                                                            —    agree to vary that decision so as to declare that an
                                                                                 assessment of and a ruling on the merits of the opposition
In the present action the applicant submits that the Com-                        to registration of Community trade mark No 278028 is
mission infringed its obligations under Article 87 and
                                                                                 appropriate, to which end the Court’s judgment should
Article 88(1) EC because, despite having been called upon to                     declare that Community trade mark No 278028 is
act in accordance with paragraphs 2 and 3 of Article 232 EC,                     refused, or, in the alternative, refer the case back to the
it failed to investigate the compatibility of Paragraph 4(1),
                                                                                 First Board of Appeal of the OHIM;
Head 3(a), of the German Law on the taxation on mineral oil
with the State-aid provisions of the EC Treaty and to adopt a
binding decision in that regard. No such decision can be                    —    order the defendant and, where appropriate, the inter-
discerned in the Commission’s letter of 21 September 2002                        vener to pay all the costs of the proceedings and those
and the Commission’s failure to act is not justified by objective                incurred at the administrative stages of the opposition
reasons.                                                                         and appeal proceedings.