CELEX: C2002/274/57
Language: en
Date: 2002-11-09 00:00:00
Title: Case T-266/02: Action brought on 4 September 2002 by Deutsche Post AG against the Commission of the European Communities

C 274/32               EN                     Official Journal of the European Communities                                    9.11.2002
The applicant contends in addition that the infringement in              Action brought on 4 September 2002 by Deutsche Post
the present case did not appreciably affect trade between                AG against the Commission of the European Communi-
Member States. Many of the Bankenrunden had no international                                            ties
connection. Others could at any rate have no appreciable effect
on trade between States. Even if the infringement were to have
affected trade between States appreciably, there is in any                                        (Case T-266/02)
event no fault on the applicant’s part. In accordance with
Article 15(2) of Regulation No 17/62 it was therefore not
possible to fine the applicant.
                                                                                                  (2002/C 274/57)
Furthermore, in determining the applicant’s fine the defendant
made two errors of calculation with serious consequences.
                                                                                           (Language of the case: German)
Also, the seriousness of the infringement and the existence of
mitigating grounds are misappraised in the decision and no
regard was had to the applicant’s extensive cooperation.
Finally, the decision violates the prohibition on retroactivity in
Article 7 of the European Convention on Human Rights,
because the fine was determined on the basis of a framework              An action against the Commission of the European Communi-
for fines which, as a result of two amendments to the                    ties was brought before the Court of First Instance of the
defendant’s decision-making practice, was not introduced until           European Communities on 4 September 2002 by Deutsche
the infringement had come to an end.                                     Post AG, Bonn (Germany), represented by J. Sedemund and
                                                                         T. Lübbig, with an address for service in Luxembourg.
                                                                         The applicant claims that the Court should:
Action brought on 3 September 2002 by Mr Jan Pflugradt
              against the European Central Bank                          —     declare the Commission Decision of 19 June 2002 on
                                                                               State aid No 61/99 (ex No 153/96) void;
                         (Case T-265/02)
                                                                         —     order the Commission to pay the costs.
                        (2002/C 274/56)
                   (Language of the case: German)
                                                                         Pleas in law and main arguments
An action against the European Central Bank was brought
before the Court of First Instance of the European Communities
on 3 September 2002 by Mr Jan Pflugradt, Frankfurt am Main
(Germany), represented by N. Pflüger, lawyer.                            The subject of the contested decision is the below-cost selling
                                                                         of parcel services for business clients, compensating for which
                                                                         gives rise to cross-subsidisation which is contrary to the law
The applicant claims that the Court should:                              on aid. In its decision the Commission found that the State aid
                                                                         of EUR 572 million, which Germany granted to the applicant,
—     annul the formal warning given by the letter of 28 Febru-          was incompatible with the common market. It found that
      ary 2002;                                                          State compensation for the net additional costs of a rebate
                                                                         policy which reduces the costs normally incurred in providing
—     order the defendant to pay the costs.                              door to door parcel services which are open to competition
                                                                         favoured the undertaking within the meaning of Article 87(1)
                                                                         EC.
Pleas in law and main arguments
The case has the same basis as Case T-83/02 (Pflugradt v                 The applicant contests that decision and points out that the
ECB) ( 1), and the pleas in law and arguments correspond to              same below-cost selling was the subject of the Commission
those which were put forward in that case.                               Decision of 20 March 2000 ( 1) adopted on the basis of
                                                                         Article 82 EC and that the two decisions came to very different
                                                                         conclusions regarding the duration, the amount and the source
( 1) OJ C 118, 18.5.2002, p. 30.                                         of financing of the alleged below-cost selling. The applicant
                                                                         submits that the below-cost selling alleged in the Decision is
                                                                         based on a miscalculation.
 ---pagebreak--- 9.11.2002              EN                      Official Journal of the European Communities                                       C 274/33
The applicant also argues that the Commission’s assertion that            The applicant claims that the Court should:
the below-cost selling complained of arose as a result of an
aggressive rebate policy and that there is thus no causal link            —     annul the decision of the Third Board of Appeal of
between it and the applicant’s public service obligations is not                26 June 2002 in the appeal procedure R 206/2002-3;
based on any evidence and is clearly inaccurate. Further, the
Commission has exceeded its powers in the area of services in             —     order the defendant to pay the costs.
the general economic interest, as, according to the case-law, it
has no authority to decide on the level of costs or the efficiency
of the postal service provider.
                                                                          Pleas in law and main arguments
The applicant submits that the Commission has misapplied                  Community trade mark           Word mark ‘bestpartner’ — appli-
Article 87 and infringed the case-law on findings regarding aid           applied for:                   cation No 2 268 134
to undertakings providing services in the general economic
interest. The Commission has furnished no evidence that the               Goods or services:             Services in Classes 36, 38 and
decision on cross-subsidisation in favour of the business client                                         42 (inter alia, insurance, Internet
parcel service can be attributed to State-run bodies of the                                              services and data processing for
Federal Republic of Germany. Moreover the Commission has                                                 others)
disregarded the fact that a purely internal offsetting of losses
within an undertaking does not constitute aid, but is merely              Decision before         the    Refusal of registration by the
covered by Article 82. It has also disregarded the fact that the          Board of Appeal:               examiner
financing of temporary below-cost selling was an economically
sound decision.                                                           Decision of the Board of       Dismissal of appeal
                                                                          Appeal:
Finally, the applicant submits that the Commission has                    Pleas in law:                  —     No grounds for refusal under
infringed the principle of the right to a fair hearing.                                                        Article 7(1)(b) and (c) of
                                                                                                               Regulation (EC) No 40/
                                                                                                               94 ( 1);
( 1) Commission Decision 2001/354/EC of 20 March 2001 relating                                           —     No need to keep free.
     to a proceeding under Article 82 of the EC Treaty (Case COMP/
     35.141 Deutsche Post AG) (OJ 2001 L 125, p. 27).
                                                                          (1 ) Council Regulation (EC) No 40/94 of 20 December 1993 on the
                                                                               Community trade mark (OJ 1994 L 11, p. 1).
Action brought on 28 August 2002 by MLP Finanz-                           Action brought on 2 September 2002 by Österreichische
dienstleistungen AG against the Office for Harmonisation                  Volksbanken-Aktiengesellschaft and Niederösterreichi-
      in the Internal Market (Trade Marks and Designs)                    sche Landesbank-Hypothekenbank AG against the Com-
                                                                                      mission of the European Communities
                         (Case T-270/02)                                                            (Case T-271/02)
                         (2002/C 274/58)                                                            (2002/C 274/59)
                                                                                            (Language of the Case: German)
                   (Language of the case: German)
                                                                          An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of First Instance of the
An action against the Office for Harmonisation in the Internal            European Communities on 2 September 2002 by Österreichi-
Market (Trade Marks and Designs) was brought before the                   sche Volksbanken-Aktiengesellschaft and Niederösterreichi-
Court of First Instance of the European Communities on                    sche Landesbank-Hypothekenbank AG, established in Vienna
28 August 2002 by MLP Finanzdienstleistungen AG, Heidel-                  and St. Pölten (Austria), represented by A. Ablasser, R. Roniger
berg (Germany), represented by W. Göpfert, lawyer.                        and R. Bierwagen, Lawyers.