CELEX: C2003/171/69
Language: en
Date: 2003-07-19 00:00:00
Title: Case T-180/03: Action brought on 21 May 2003 by Auna Operadores de Telecomunicaciones, S.A., Retecal Sociedad Operadora de Telecomunicaciones de Castilla y León, S.A. Euskaltel, S.A., Telecable de Asturias, S.A. (a company arising from the merger between Telecable de Avilés, S.A., Telecable de Oviedo, S.A. and Telecable de Gĳón, S.A.), R. Cable y Telecomunicaciones Galicia, S.A. and Tenaria, S.A. against Commission of the European Communities

19.7.2003              EN                          Official Journal of the European Union                                         C 171/41
The applicant claims that the Court should:                                European Communities on 21 May 2003 by Auna Operadores
                                                                           de Telecomunicaciones, S.A., whose registered office is in
—     annul the decision adopted on 13 February 2003 by the                Barcelona (Spain) represented by Antonio Creus Carreras and
      Fourth Board of Appeal of the Office for Harmonisation               Natalia Lacalle Mangas, lawyers, Retecal Sociedad Operadora
      in the Internal Market (Trade Marks and Designs) in case             de Telecomunicaciones de Castilla y León, S.A. whose regis-
      R 839/2001-4;                                                        tered office is in Boecilli, Valladolid (Spain) Euskaltel, S.A.,
                                                                           whose registered office is in Zamudio, Bizkaia (Spain) Telecable
—     order the Defendant to remit the application to its                  de Asturias, S.A. (a company arising from the merger between
      Examination Division for re-examination of Community                 Telecable de Avilés, S.A., Telecable de Oviedo, S.A. and
      Trade Mark number 1864107.                                           Telecable de Gijón, S.A.), whose registered office is in Oviedo
                                                                           (Spain), R. Cable y Telecomunicaciones Galicia, S.A., whose
                                                                           registered office is in A Coruña (Spain), and Tenaria, S.A.,
                                                                           whose registered office is in Cordovilla, Navarra (Spain)
                                                                           represented by José Mª Jiménez Laiglesia, lawyer.
Pleas in law and main arguments
The trade mark con-            The      word       mark       ‘NUR-
cerned:                        SERYROOM’         — application             The applicants claim that the Court should:
                               No 1864107
Goods or service con-          Goods in Class 16, 18, 21, 25 and
                                                                           —     annul the decisions of the Commission of 14 March
cerned:                        28 (e.g. books, clothes, plush toys)              2003 in so far as the Commission took the view that the
                                                                                 agreement of 29 January 2003 did not give rise to a new
Decision         contested     Refusal of registration by the                    concentration;
before the Board of            examiner
Appeal:
                                                                           —     order the Commission to pay the entire costs of the
Decision of the Board of       Dismissal of the appeal
                                                                                 proceedings.
Appeal:
Grounds of claim:              Misapplication of Article 7(1)(c)
                               of Regulation (EC) No 40/94 (1).
( 1) Council Regulation (EC) No 40/94 of 20.12.1993 on the Com-            Pleas in law and main arguments
     munity trade mark (OJ L 11, p. 1).
                                                                           The applicants in the present action are contesting the
                                                                           decisions of 14 March 2003 by which the Commission decided
                                                                           to take no further action on the complaints lodged by them
                                                                           against an agreement between the companies Sogecable and
                                                                           Telefónica on 29 January 2003 which, in their view, gives rise
Action brought on 21 May 2003 by Auna Operadores de
                                                                           to a new concentration by comparison with the concentration
Telecomunicaciones, S.A., Retecal Sociedad Operadora de
                                                                           previously notified on 3 July 2002, which was referred to the
Telecomunicaciones de Castilla y León, S.A. Euskaltel,                     national authorities by decision of 14 August 2002 ( 1).
S.A., Telecable de Asturias, S.A. (a company arising from
the merger between Telecable de Avilés, S.A., Telecable
de Oviedo, S.A. and Telecable de Gijón, S.A.), R. Cable y
Telecomunicaciones Galicia, S.A. and Tenaria, S.A. against
         Commission of the European Communities                            According to the applicants, the abovementioned agreement
                                                                           of 20 January 2003 envisages the possibility, which had
                                                                           initially been discarded, that Telefónica’s final share of Soge-
                         (Case T-180/03)                                   cable’s capital (23 %) should be greater than the share held by
                                                                           the company’s reference partners. The agreement also provides
                         (2003/C 171/69)                                   that Telefónica will waive certain rights affecting questions of
                                                                           policy arising from the major shareholding of those assets by
                                                                           Prisa and Groupe Canal+. On the other hand, Telefónica would
                   (Language of the case: Spanish)                         remain a shareholder in Sogecable with effect from the
                                                                           implementation of the concentration operation. Furthermore,
                                                                           with the purpose of assisting the integration of their platforms,
                                                                           Prisa, Groupe Canal+ and Telefónica each agreed to provide
An action against the Commission of the European Communi-                  Sogecable with a loan with profit participation amounting to
ties was brought before the Court of First Instance of the                 EUR 50 million repayable in 10 years. It was also agreed
 ---pagebreak--- C 171/42              EN                        Official Journal of the European Union                                      19.7.2003
that Sogecable would offer its shareholders the option of                       Removal from the register of Case T-253/01 (1)
participating in a subordinated loan of EUR 175 million, to be
underwritten in its entirety by Telefónica. Finally, the parties                                 (2003/C 171/70)
agreed that neither of their debts should exceed, prior to the
concentration, EUR 425 million and 705 million respectively,                               (Language of the case: English)
with a maximum limit of EUR 1 130 million.
                                                                        By order of 30 April 2003 the President of the Fourth Chamber
                                                                        of the Court of First Instance of the European Communities
In support of their claims, the applicants allege that the              ordered the removal from the register of Case T-253/01: UPS
contested decisions contain manifest errors of assessment of            Europe NV/SA v Commission of the European Communities.
the facts complained of. They also take the view that the
Commission has been negligent inasmuch as it did not fully              (1 ) OJ C 31 of 02.02.2002.
analyse the facts. Moreover, the defendant’s assessment also
infringes the principle of equality in that it diverges from
previous decisions in which it was held that it was necessary
to submit a new notification.
                                                                                Removal from the register of Case T-24/03 ( 1)
                                                                                                 (2003/C 171/71)
Finally, the applicant companies allege that the Commission
misused its powers.                                                                         (Language of the case: Italian)
                                                                        By order of 30 April 2003 the President of the First Chamber
( 1) Case T-346/02 Cableuropa and Others (OJ 2003 C 19, p. 40) and      of the Court of First Instance of the European Communities
     Case T-347/02 Aunacable and Others (OJ 2003 C 19, p. 40).          ordered the removal from the register of Case T-24/03:
                                                                        Antonio Aresu v Commission of the European Communities.
                                                                        (1 ) OJ C 70 of 22.03.2003.