CELEX: C2002/044/37
Language: en
Date: 2002-02-16 00:00:00
Title: Case T-291/01: Action brought on 30 November 2001 by Dessauer Versorgungs- und Verkehrsgesellschaft mbH — DVV — Stadtwerke and four other undertakings against the Commission of the European Communities

16.2.2002               EN                    Official Journal of the European Communities                                             C 44/19
The applicant argues that, by imposing the condition in                  Pleas in law and main arguments
Article 3(a) of the decision, the defendant has applied
Article 81(3) EC incorrectly inter alia in that the condition is
not objectively necessary as the use of the collection and               The applicant is challenging a demand for repayment of
sorting facilities is in no way indispensable for the activities of      Community grants totalling EUR 464 329,22 made by the
competitors. Moreover, the condition, which is dispro-                   Commission in the contested debit note.
portionate, entails an encroachment on the specific subject
matter of the applicant’s trade mark and distortion of compe-            The applicant and the Community concluded, within the
tition to the detriment of the applicant.                                framework of the LIFE project (1), a contract relating to the
                                                                         planned ‘Ecological revitalisation of the Brandenburgische
                                                                         Elbtalaue’: preparatory planning and Gnevsdorfer Werder sub-
The applicant argues, further, that, by imposing the condition           project’. The Commission undertook to participate by making
in Article 3(a), the defendant has applied Article 86(2) EC              a contribution of 50 % of the actual cost, but not exceeding
incorrectly, since the applicant, which is entrusted with a              ECU 1,5 million. The project thus promoted, which was
service of general interest, can no longer operate its country-          designed to prepare the reinstatement of the embankment
wide system under economically viable conditions and make                between the municipalities of Lenzen and Wustrow, was
the necessary adjustments between profitable and less profit-            finished in 1998. Shortly before the end of the project, it
able sectors.                                                            became apparent that it would not be possible to reinstate the
                                                                         embankment as extensively as had been planned.
Moreover, by imposing the condition in Article 3(b) the
defendant has applied Article 86(2) EC incorrectly. Finally, the         In February 2001 the Commission gave notice that, in its view,
defendant, by seeking the commitment of 25 September 1998                the applicant, in carrying out the project, had partly deviated
(recital 72), has breached the fundamental right to freedom of           from the contract and that, since the applicant had reduced
access to justice.                                                       the surface area of the project, the Commission was only able
                                                                         to co-finance the work done in the reduced area. By the
                                                                         contested decision, the Commission called upon the applicant
(1) OJ C 100, p. 4.                                                      to repay to it EUR 464 329,33.
(2) Case T-151/01 Der Grüne Punkt — Duales System Deutschland
    AG v Commission OJ 2001 C 289, p. 6.
                                                                         The applicant asserts that the Community is not entitled to
                                                                         demand the repayment at issue by means of a Commission
                                                                         decision; instead, it is obliged to have recourse to law
                                                                         before the national courts. In addition, it maintains that the
                                                                         Commission has failed to comply with its obligation to provide
                                                                         a statement of reasons and has violated the applicant’s rights
                                                                         of defence. Finally, the Commission has infringed the principle
Action brought on 28 November 2001 by the Land                           of proportionality.
Brandenburg against the Commission of the European
                            Communities
                                                                         (1) Council Regulation (EEC) No 1973/92 of 21 May 1992 estab-
                                                                             lishing a financial instrument for the environment (LIFE) (OJ 1992
                          (Case T-290/01)                                    L 206, p. 1), as amended by Regulation (EC) No 1404/96 of
                                                                             15.7.1996 (OJ 1996 L 181, p. 1).
                           (2002/C 44/36)
                   (Language of the case: German)
                                                                         Action brought on 30 November 2001 by Dessauer
An action against the Commission of the European Communi-                Versorgungs- und Verkehrsgesellschaft mbH — DVV —
ties was brought before the Court of First Instance of the               Stadtwerke and four other undertakings against the
European Communities on 28 November 2001 by the Land                               Commission of the European Communities
Brandenburg (Germany), represented by G. Schohe and T. Mas-
ing, lawyers, with an address for service in Luxembourg.                                             (Case T-291/01)
                                                                                                      (2002/C 44/37)
The applicant claims that the Court should:
—     annul the decision contained in the Commission’s debit                                 (Language of the case: German)
      note No 3240305411 of 13.9.2001 addressed to the
      applicant, relating to project No LIFE94/D/
      A211/00029/BND re Contract No B4-3200/94/730;                      An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
—     order the defendant to pay the costs.                              European Communities on 30 November 2001 by Dessauer
 ---pagebreak--- C 44/20               EN                     Official Journal of the European Communities                                       16.2.2002
Versorgungs- und Verkehrsgesellschaft mbH — DVV —                       pursuant to Articles 10(1), 13(1) and 4(4) of Council Regu-
Stadtwerke, of Dessau (Germany), Neubrandenburger                       lation (EC) No 659/1999 (1). Had it done so, the Commission
Stadtwerke GmbH, of Neubrandenburg (Germany), Stadtwerke                would then have been constrained, under the law applicable
Schwäbisch Hall GmbH, of Schwäbisch Hall (Germany),                     to grants of aid, to adopt a negative decision against the Federal
Stadtwerke Tübingen GmbH, of Tübingen (Germany) and                     Republic of Germany on the facts as stated.
Stadtwerke Uelzen GmbH, of Uelzen (Germany), represented
by D. Fouquet, lawyer.
                                                                        (1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
                                                                            down detailed rules for the application of Article 93 of the EC
                                                                            Treaty (now Article 88 EC) (OJ 1999 L 83, p. 1).
The applicants claim that the Court should:
—     declare that, by failing, within two months after being
      formally called upon by letter of 29 August 2001 to act
      pursuant to the second paragraph of Article 232 EC, to
      examine the complaint made on the basis of Articles 87
      and 88 EC and to reach a decision in the light of that
      examination, the Commission has infringed Article 232
      EC;                                                               Action brought on 28 November 2001 by Phillips-Van
                                                                        Heusen Corporation against Office for the Harmonization
                                                                         of the Internal Market (trade marks and designs) (OHIM)
—     order the Commission to pay the costs of the proceedings,
      including the costs incurred by the applicants, even in the
      event that, following the bringing of the action, the                                      (Case T-292/01)
      Commission takes action in such a way that, in the
      opinion of the Court, the proceedings have become                                           (2002/C 44/38)
      nugatory.
                                                                                            (Language of the case: Italian)
Pleas in law and main arguments
                                                                        An action against Office for Harmonization in the Internal
                                                                        Market (trade marks and designs) (OHIM) was brought before
The applicants are German public utilities producing their own          the Court of First Instance of the European Communities on
electricity. Since the introduction of competition in the               28 November 2001 by Phillips-Van Heusen Corporation of
electricity market, the applicants, as energy suppliers, have           New York (United States of America), represented by Fabrizio
been in competition with, in particular, the 19 existing nuclear        Jacobacci. The other party in proceedings before the Com-
power stations as regards the production of electricity in the          mission was: Pash Textilvertrieb und Einzelhandel GmbH of
Federal Republic of Germany.                                            Munich (Germany)
                                                                        The applicant claims that the Court should:
According to the applicants, the nuclear power station oper-
ators set aside reserves in their commercial and tax balance
sheets in respect of the cost of having to close down at some           —     annul Decision R 0740/2000-3 of the Third Board of
future date and the disposal of irradiated fuel elements and                  Appeal of the Office for Harmonization in the Internal
radioactive waste. The disposal and shutting-down costs are                   Market (Trade Marks and Designs) of 12 September 2001
allocated to the sales proceeds from continuous electricity                   notified on 28 September 2001 to the applicant;
production. However, according to the applicants, the obli-
gation under commercial law to set aside reserves affects, at           —     definitively reject the opposition brought by the defend-
the same time, the way in which the nuclear power station                     ant against registration of Community trade mark
operators are treated for tax purposes. As a result of the                    No 161331 BASS, on behalf of Phillips-Van Heusen
German tax rules, a significant part of the tax additionally                  Corporation, in respect of the whole of Class 25;
demanded is in fact made freely available to the nuclear power
station operators by virtue of the legislation on tax relief.           —     order the Office for Harmonization in the Internal Market
                                                                              (Trade Marks and Designs) (OHIM) to register Community
                                                                              trade mark No 161331 BASS;
The applicants assert that the exemption of reserves under
fiscal law in favour of nuclear power stations constitutes a            —     order the defendant and the OHIM to pay, jointly or
grant by the Federal Republic of Germany of unlawful, non-                    severally, to the applicant the costs, expenses and fees
notified aid which is incompatible with the common market.                    incurred in both the present proceedings and the oppo-
They maintain that the Commission was obliged to open a                       sition and appeal proceedings before the Office for
formal procedure against the Federal Republic of Germany                      Harmonization in the Internal Market.