CELEX: C2003/044/62
Language: en
Date: 2003-02-22 00:00:00
Title: Case T-358/02: Action brought on 5 December 2002 by Deutsche Post AG and DHL International S.r.l. against the Commission of the European Communities

C 44/32                 EN                         Official Journal of the European Union                                         22.2.2003
question to be considered and that question must relate to the             —     order the defendant to pay the costs.
quality, safety or efficacy of the product. The applicant claims
that these conditions were not satisfied.
The applicant furthermore claims that the contested decision
infringed essential procedural requirements. According to the
applicant, the procedure breached the applicant’s rights of                Pleas in law and main arguments
defence and its right to be heard. The applicant was not given
the opportunity to comment on the key amendments to the
Capoten Summary of Product Characteristics. The procedure
also infringed the timetable provided for in Article 32 of                 In the applicants’ submission, it is apparent from the contested
Directive 12001/83 and in the Commission’s Notice to                       decision that Poste Italiane SpA was continuously in deficit in
Applicants (1998 version).                                                 the postal services sector from 1994 to 1999 and that it
                                                                           received State resources which served to offset the deficits. In
                                                                           Article 2 of the decision, the Commission decided that that
The applicant invokes also the infringement of rules of                    State subsidy to Poste Italiane SpA did not constitute State aid
Community law, like the principle of equal treatment, the duty             under Article 87(1) EC.
to give reasons, the principle of legitimate expectations and
the principle of proportionality.
Finally, the applicant claims that the contested decision is               The applicants submit that, so far as concerns the offsetting of
vitiated by manifest errors of assessment.                                 losses of those postal services which, although forming part of
                                                                           the universal service, have been opened up to competition, the
                                                                           decision is incompatible with Article 87(1) EC as interpreted
( 1) Council Directive 65/65/EEC of 26 January 1965 on the approxi-        in the Commission decision of 19 June 2002 (2). By that
     mation of provisions laid down by Law, Regulation or Adminis-         decision the Commission established that the use of State
     trative Action relating to proprietary medicinal products (OJ         resources to offset losses recorded by a postal undertaking in
     1965, p. 369).                                                        the sector of postal services that form part of the universal
( 2) Directive 2001/83/EC of the European Parliament and of the            service but are opened up to competition infringes
     Council of 6 November 2001 on the Community code relating to          Article 87(1) of the Treaty as a cross-subsidy not capable of
     medicinal products for human use (OJ L 311, p. 67).                   being approved where the losses are caused by rates of charges
                                                                           which do not cover costs and which the postal undertaking is
                                                                           not required to apply by a State measure.
                                                                           The applicants contend that the decision is all the less
Action brought on 5 December 2002 by Deutsche Post                         compatible with Article 87(1) EC in so far as it relates to loss-
AG and DHL International S.r.l. against the Commission                     making postal services which do not form part of the universal
                  of the European Communities                              service and have been opened up to competition for a long
                                                                           time. Since the Italian postal operator has been recording only
                                                                           losses for 50 years and those losses can therefore only have
                           (Case T-358/02)                                 been covered by State resources, the Commission should not
                                                                           have ‘neglected’ the offsetting in respect of those postal services
                           (2003/C 44/62)                                  from State resources but would have been obliged in that
                                                                           respect too to examine whether there was a cross-subsidy
                                                                           incompatible with Article 87(1) EC.
                    (Language of the Case: German)
An action against the Commission of the European Communi-                  The applicants further submit that no reason is stated as to
ties was brought before the Court of First Instance of the                 why the Commission in the contested decision, in contrast to
European Communities on 5 December 2002 by Deutsche                        its decision of 19 June 2002, recognised the cross-subsidy as
Post AG, established in Bonn (Germany), and DHL Inter-                     involving a net extra cost which could be offset in the ‘general
national S.r.l., established in Rozzano (Italy), represented by            economic interest’. At the same time, therefore, there is an
J. Sedemund and T. Lübbig, lawyers.                                        infringement of the duty to state reasons under Article 253
                                                                           EC.
The applicants claim that the Court should:
—      annul Commission Decision 2002/782/EC of 12 March                   Finally, the decision infringes the general prohibition of
       2002 on the aid granted by Italy to Poste Italiane SpA (1);         discrimination under Article 12 EC, since the Commission has
 ---pagebreak--- 22.2.2003                EN                         Official Journal of the European Union                                          C 44/33
accorded the Italian postal operator preferential treatment vis-            The applicant’s other pleas in law and arguments are the same
à-vis the applicants, which are in competition with it in the               as those set out in Case T-351/02.
very sector of postal services which have been opened up to
competition.
( 1) OJ L 282, 19.10.2002, p. 29.
( 2) Commission Decision on measures implemented by the Federal
     Republic of Germany for Deutsche Post AG (OJ L 247, 14.9.2002,
     p. 27).
                                                                            Action brought on 5 December 2002 by Muswellbrook
                                                                            Limited against the Office for Harmonisation in the
                                                                                                Internal Market (OHIM)
Action brought on 5 December 2002 by Deutsche Bahn
AG against the Commission of the European Communi-                                                  (Case T-362/02)
                                  ties
                                                                                                     (2003/C 44/64)
                            (Case T-361/02)
                            (2003/C 44/63)                                                    (Language of the case: Spanish)
                    (Language of the case: German)
                                                                            An action against the Office for Harmonisation in the Internal
An action against the Commission of the European Communi-                   Market (OHIM) was brought before the Court of First Instance
ties was brought before the Court of First Instance of the                  of the European Communities on 5 December 2002 by
European Communities on 5 December 2002 by Deutsche                         Muswellbrook Limited, established in Dublin (Ireland), rep-
Bahn AG, Berlin, Germany, represented by M. Schütte, lawyer,                resented by J. Casulá Oliver, lawyer.
with an address for service in Luxembourg.
The applicant claims that the Court should:                                 The applicant claims that the Court should:
—      find that the Commission infringed its obligations under
       Article 87 and Article 88(1) EC in failing to adopt a                —    declare incompatible with Regulation (EC) No 40/94 on
       decision on the matters submitted to it by the applicant                  the Community trade mark, in particular Article 15(2)(a)
       in its complaint of 5 July 2002, and in any event, in                     and/or Article 42(2) and (3) thereof, the decision of the
       failing to initiate an investigation of State aid;                        First Board of Appeal of the OHIM of 30 September
                                                                                 2002 in case No R 16/2000-1, inasmuch as it declares
—      order the Commission to pay the costs.                                    that the opponent has failed to prove genuine use in the
                                                                                 Community of the Spanish trade mark No 88222 to
                                                                                 distinguish ready-to-wear and other items of clothing in
                                                                                 Class 25 during the five years preceding the publication
Pleas in law and main arguments                                                  of the application for a Community trade mark;
The action has the same origin as that in Case T-351/02                     —    annul that decision in its entirety;
(Deutsche Bahn v Commission).
                                                                            —    agree to vary that decision so as to declare that an
                                                                                 assessment of and a ruling on the merits of the opposition
In the present action the applicant submits that the Com-                        to registration of Community trade mark No 278028 is
mission infringed its obligations under Article 87 and
                                                                                 appropriate, to which end the Court’s judgment should
Article 88(1) EC because, despite having been called upon to                     declare that Community trade mark No 278028 is
act in accordance with paragraphs 2 and 3 of Article 232 EC,                     refused, or, in the alternative, refer the case back to the
it failed to investigate the compatibility of Paragraph 4(1),
                                                                                 First Board of Appeal of the OHIM;
Head 3(a), of the German Law on the taxation on mineral oil
with the State-aid provisions of the EC Treaty and to adopt a
binding decision in that regard. No such decision can be                    —    order the defendant and, where appropriate, the inter-
discerned in the Commission’s letter of 21 September 2002                        vener to pay all the costs of the proceedings and those
and the Commission’s failure to act is not justified by objective                incurred at the administrative stages of the opposition
reasons.                                                                         and appeal proceedings.