CELEX: C2001/134/61
Language: en
Date: 2001-05-05 00:00:00
Title: Case T-63/01: Action brought on 16 March 2001 by The Procter & Gamble Company against the Office for Harmonization in the Internal Market

5.5.2001               EN                    Official Journal of the European Communities                                        C 134/29
The Commission objects, in particular, to the inclusion in the          —     the principles and rules have not be observed regarding
area reserved to the incumbent operator of a guaranteed day-                  protection of services of general economic interest and in
or time-certain delivery service for time-sensitive electronic                particular of universal services. The applicant points out,
correspondence.                                                               in that respect, the particularly high costs of the universal
                                                                              postal system in Italy as well as the destabilising effect of
                                                                              the decision in question on the financial equilibrium of
                                                                              the provider of the universal service.
In support of its arguments, the applicant claims that:
                                                                        (1) OJ 1998 L 15, p. 14.
—    in the final decision the Commission altered substantially
     essential elements of the infringement complained of
     originally consisting in particular in: the definition of the
     relevant market and the legal classification and assessment
     of the infringement at issue. In this regard, the applicant
     takes the view that, in the final decision the Commission
     does not further identify the relevant market on the basis         Action brought on 16 March 2001 by The Procter &
     of a number of bundled services which, taken as a                  Gamble Company against the Office for Harmonization
     whole, confer on the service significant added-value by                                 in the Internal Market
     comparison with basic postal services. Rather, on the
     contrary, the Commission merely points to a single
     additional service (the date- and time-certain delivery of                                   (Case T-63/01)
     time-sensitive electronic mail) as a factor capable by itself
     of characterising a discrete relevant market.                                               (2001/C 134/61)
—    the Commission has not allowed either the applicant or                                (Language of the case: French)
     the Italian authorities to make their own points of view
     effectively known. Furthermore, despite a finding by               An action against the Office for Harmonization in the Internal
     the Commission originally that Directive 97/67/EC was              Market was brought before the Court of First Instance on
     essential for the legal assessment of the facts, that directive    16 March 2001 by The Procter & Gamble Company, estab-
     is not even cited in the final decision. In that respect, the      lished in Cincinnati (United States of America), represented by
     applicant affirms that the interpretation of the directive is      Thierry van Innis, lawyer, with an address for service in
     essential in order to decide whether the decree in issue is        Luxembourg.
     compatible. Indeed, if the Commission had assessed
     properly the decree in issue in the light of Directive
     97/67/EC, it would have concluded that the disputed                The applicant claims that the Court should:
     national provisions were fully consistent with the content
     and purpose of the directive itself.                               —     annul the Board of Appeal’s decision of 14 December
                                                                              2001;
                                                                        —     order the Office to pay all the costs.
—    the definition of the relevant market is vague and general
     inasmuch as it merely describes the service involved
     in general terms such as, basically, the time-certainty
     (date/time) of the service and the fact that the deadline          Pleas in law and main arguments
     for each delivery is subject to a contractual relationship
     with the user. The definition of the relevant market is not
                                                                        The action is directed against the decision of the Office’s Third
     even founded in the light of the relevant economic
                                                                        Board of Appeal, dated 14 December 2000 (Case R 74/1998-
     circumstances and practice of the Commission. Moreover,
                                                                        3), rejecting the applicant’s appeal against the decision of
     it has omitted to take into consideration the prices
                                                                        18 March 1998 whereby the examiner refused registration of
     charged to customers.
                                                                        the Community trade mark applied for under number 230680
                                                                        on the absolute ground referred to in Article 7(1)(e)(i) of
                                                                        Regulation No 40/94 on the Community trade mark.
—    there is no abuse of a dominant position, so that the
     Commission is mistaken in its hypothesis that Poste                Attention is drawn in this regard to the fact that, by decision
     Italiane has extended its position in the market with              of 15 March 1998, the same Board of Appeal rejected an
     respect to conventional deliveries into the neighbouring           application for registration in respect of the same mark. That
     but distinct market for day- or time-certain deliveries of         decision was annulled by the judgment delivered by the Court
     time-sensitive items.                                              of First Instance on 16 February 2000 in Case T-122/99
 ---pagebreak--- C 134/30              EN                   Official Journal of the European Communities                                       5.5.2001
Procter & Gamble Company v OHIM [2000] ECR II-265.                    Before adopting its decision, the Board of Appeal requested
Following delivery of that judgment, the examiner requested           the applicant to submit its observations on that other ground.
the applicant to submit further observations.
                                                                      In support of its claims, the applicant asserts that the Board of
However, in the concluding part of the contested decision,            Appeal has infringed Article 7(1)(b) of Regulation No 40/94
when dealing with the merits of the refusal to effect the             and has violated the right to a fair hearing, inasmuch as the
registration applied for, the Board of Appeal did not uphold          contested decision was taken by the same persons as those
the absolute ground regarded as valid by the examiner; instead,       who, in their capacity as members of the Third Board of
it considered that another absolute ground, namely that               Appeal, issued a decision on the substance of the matter on
provided for in Article 7(1)(b), justified the refusal of the         15 March 1999, relating to the same parties, the same
application for registration.                                         application for registration and the same absolute ground.