CELEX: C2002/274/58
Language: en
Date: 2002-11-09 00:00:00
Title: Case T-270/02: Action brought on 28 August 2002 by MLP Finanzdienstleistungen AG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

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.