CELEX: C2003/264/51
Language: en
Date: 2003-11-01 00:00:00
Title: Case T-271/03: Action brought on 30 July 2003 by Deutsche Telekom AG against the Commission of the European Communities

1.11.2003             EN                          Official Journal of the European Union                                         C 264/29
Pleas in law and main arguments                                           The applicant claims that the Court should:
Applicant for Com-            The applicant.                              —     annul the defendant’s decision of 21 May 2003, published
munity trade mark:                                                              under Case No C(2003)1536 final;
Community trade mark          Figurative colour mark ‘GLOVE’
sought:                       — Application No 464016 for a               —     in the alternative, reduce the fine imposed in Article 3 of
                              range of goods and services in                    the decision at the Court’s discretion;
                              Classes 25, 35 and 41.
Proprietor of mark or         RCN-Companhia de importaçao e               —     order the defendant to pay the costs, including pre-
sign cited in the oppo-       esportaçao de Texteis, Lda.                       litigation costs.
sition proceedings:
Mark or sign cited in the     Spanish                 (registration
opposition:                   No 1.629.840) and international
                              (registration No 651.424) figurat-
                              ive trade mark ‘GLOIBE’ and por-            Pleas in law and main arguments
                              tuguese (registration No 310.796)
                              and        spanish      (registration
                              No 1.981.850) word trade mark
                              ‘GLOBE’ for goods in Class 25               By the contested decision the Commission decided that the
                              (clothing, footwear and belts).             applicant had infringed Article 82a of the EC Treaty by
                                                                          charging its competitors and final customers excessive monthly
Decision of the Oppo-         Refusal of the application for              and flat-rate fees for access to its fixed network, thereby
sition Division:              goods in class 25 (namely cloth-            impeding competition for access to the network on the market.
                              ing, footwear and belts) and                The applicant was fined EUR 12,6 million.
                              admission of the Community tra-
                              de mark application for the
                              remaining services in Classes 35
                              and 41.                                     The applicant claims that the Commission infringed Article 82
                                                                          EC on the basis that it could not be accused of anti-competitive
Decision of the Board of      Rejection of the appeal.                    conduct because the amount of the contested fees could not
Appeal:                                                                   be excessive since there was no restriction of competition.
                                                                          Contrary to the Commission’s view, the cost/price discrepancy
Pleas in law:                 Incorrect        application        of      according to the method it used is neither appropriate nor
                              Article 8(1) of Regulation (EC)             sufficient to support a finding that the applicant’s advance and
                              No 40/94 (Absence of confusion,             final-customer fees were anti-competitive. The Commission’s
                              lack of any risk of association and         analysis of the cost/price discrepancy was misconceived in its
                              slight similarity of the products).         methods and there was no restriction of competition.
                                                                          The applicant also claims that the Commission exceeded its
                                                                          discretion in adopting the contested decision. By its decision
                                                                          the Commission is impinging on the competencies conferred
                                                                          by Community law on the German regulatory authority for
Action brought on 30 July 2003 by Deutsche Telekom AG                     post and telecommunications and attempting to correct the
against the Commission of the European Communities                        way in which the contested fees are regulated. For the same
                                                                          reason the decision is disproportionate. Its effect is to subject
                                                                          the applicant’s fees for access to the network to twofold
                        (Case T-271/03)                                   regulation and it therefore undermines the legal certainty
                                                                          intended to be created by the allocation of competence
                        (2003/C 264/51)                                   established by Community law in respect of fees in the
                                                                          telecommunications sector.
                  (Language of the case: German)
                                                                          Finally, by imposing a fine on the applicant, the defendant
                                                                          infringed essential procedural requirements and Article 15(2)
An Action against the Commission of the European Communi-                 of Regulation No 17/62.
ties was brought before the Court of First Instance of the
European Communities on 30 July 2003 by Deutsche Telekom
AG, Bonn (Germany), represented by K. Quack, U. Quack and
S. Ohlhoff, lawyers.