CELEX: C2003/031/28
Language: en
Date: 2003-02-08 00:00:00
Title: Case T-351/02: Action brought on 28 November 2002 by Deutsche Bahn AG against the Commission of the European Communities

8.2.2003              EN                         Official Journal of the European Union                                         C 31/19
The applicant claims that the Court should:                              The applicant claims that the Court should:
—     annul paragraph 1 of the operative part of the decision
      delivered by the Second Board of Appeal of the OHIM on             —     annul Commission Decision A-2661/D-1565 (2002) of
      17 September 2002;                                                       21 September 2002;
—     confirm the remainder of the decision;
                                                                         —     order the Commission to pay the costs.
—     order the defendant to pay the costs.
Pleas in law and main arguments
                                                                         Pleas in law and main arguments
Applicant for the Com-        Quick Restaurants SA
munity trade mark:
The Community trade           Figurative mark ‘QUICK’ — Appli-
                                                                         The action is directed against the letter in which the Com-
mark concerned:               cation No 350793, lodged in
                                                                         mission rejected the applicant’s complaint of 5 July 2002
                              respect of goods and services in
                                                                         contesting the tax exemption for aviation fuel under Para-
                              Classes 29, 30, 31 and 32 (meat,
                                                                         graph 4(1), Head 3(a), of the German Mineralölsteuergesetz
                              fish, coffee, foodstuffs, pre-pre-
                                                                         (Law on taxation of mineral oil, ‘MinöStG’) and declined to
                              pared dishes, prepared drinks)
                                                                         initiate a State-aid investigation of the exemption of aviation
Decision of the exam-         Registration refused                       fuel under that provision. The applicant submits that the
iner:                                                                    Commission erred in law in its decision in concluding that the
                                                                         unilateral exemption of airline undertakings from the tax on
Decision of the Board of      Confirmation of the contested              mineral oil did not constitute aid because the exemption from
Appeal:                       decision in respect of certain             the tax was covered by Directive 92/81/EEC of 19 October
                              goods in Classes 29, 30 and 31             1992 (1).
                              (that is to say: pre-prepared
                              dishes) and annulment of the
                              decision in respect of the other
                              goods                                      The applicant submits that the contested decision infringes
                                                                         essential procedural requirements. It is void because the
Grounds of claim:             Misapplication of Article 7(1)(c)          Commission did not carefully and comprehensively examine
                              of Regulation (EC) No 40/94.               the facts submitted to it by the applicant in its complaint.
                              According to the applicant, the            Furthermore, the Commission infringed the obligation to state
                              trade mark is capable of ident-            reasons under Article 253 EC. It did not indicate in detail why
                              ifying the goods concerned.                the submissions of law and of fact by the applicant in the
                                                                         complaint did not suffice to show the existence of State aid. In
                                                                         particular, the Commission ought to have stated why a
                                                                         directive which is based exclusively on Article 93 EC could
                                                                         lead to the inapplicability of Articles 87 and 88 EC. Moreover,
                                                                         the contested decision is contradictory and there is consider-
                                                                         able doubt as to whether it was lawfully adopted.
Action brought on 28 November 2002 by Deutsche Bahn
AG against the Commission of the European Communi-
                               ties
                                                                         The applicant also submits that Paragraph 4(1), Head 3(a),
                        (Case T-351/02)                                  MinöStG satisfies all the requirements for the application of
                                                                         Article 87(1) EC. The exemption from the basic obligation to
                                                                         pay excise duty on mineral oils is a benefit with monetary
                        (2003/C 31/28)                                   value without appropriate counter-performance by the airline
                                                                         companies and therefore a financial benefit for the purposes
                  (Language of the case: German)                         of Article 87(1) EC. There is no doubt that there is a
                                                                         competitive relationship between the applicant, as operator of
                                                                         high-speed trains, and airline companies with regard to the
                                                                         transport of persons between cities and conurbations in
An action against the Commission of the European Communi-                Germany and neighbouring countries, and the airline compani-
ties was brought before the Court of First Instance of the               es thereby enjoy a considerable cost advantage over the
European Communities on 28 November 2002 by Deutsche                     applicant as a result of the tax exemption, which leads to a
Bahn AG, Berlin, Germany, represented by M. Schütte, lawyer,             distortion of competition and affects trade between Member
with an address for service in Luxembourg.                               States.
 ---pagebreak--- C 31/20                   EN                          Official Journal of the European Union                                               8.2.2003
The applicant also submits that the application of                            efficiency of enterprises’. These guidelines were first notified
Article 87(1) EC is not excluded by Directive 92/81/EEC. That                 to, and approved by, the Commission in 1992. The purpose
directive does not create any exemption from the law on State                 of the notification which gave rise to the contested decision
aid, the directive being based exclusively on Article 93 EC but               was to acquire a renewed extension of the approval with effect
not also on Article 88(2) EC or Article 87(3)(e) EC. The                      from 1 January 2001 for a five-year period until 31 December
Commission’s view disregards the principles of the primacy of                 2006.
the Treaty over provisions of secondary law and leads to an
incorrect application of Articles 87 and 88 EC.
( 1) Council Directive 92/81/EEC of 19 October 1992 on the harmon-            In its application the applicant complains that the Commission
     isation of the structures of excise duties on mineral oils (OJ 1992      found that the four part-programmes ‘coaching’, ‘participation
     L 316, p. 12).                                                           in trade fairs’, ‘cooperation’ and ‘promotion of product design’
                                                                              of the above guidelines were not compatible with the common
                                                                              market inasmuch as they exceeded the scope and the intensity
                                                                              of aid laid down in Regulation (EC) No 70/2001 (1). Moreover,
                                                                              the applicant challenges the finding that the part-programme
                                                                              ‘cooperation’ provides for operating aid that is incompatible
                                                                              with the common market and that Germany may implement
                                                                              the four abovementioned part-programmes only when they
                                                                              have been brought into conformity with the contested
Action brought on 4 December 2002 by Freistaat Sachsen                        decision.
   against the Commission of the European Communities
                            (Case T-357/02)
                                                                              The applicant submits that the Commission’s findings are in
                                                                              many respects incorrect both substantively and also pro-
                            (2003/C 31/29)                                    cedurally. It claims that, the Commission, in breach of its
                                                                              Communication on the accelerated clearance of aid schemes
                     (Language of the case: German)                           for SMEs and of amendments of existing schemes (2), reached
                                                                              its decision under the normal procedure and wrongly based its
                                                                              conclusions as to the compatibility of the aid measure notified
                                                                              by the applicant exclusively on Regulation (EC) No 70/2001.
                                                                              The Commission ought to have based its decision on the
An action against the Commission of the European Communi-                     Community guidelines on State aid for small and medium-
ties was brought before the Court of First Instance of the                    sized enterprises (3) applicable at the time of the notification,
European Communities on 4 December 2002 by the Freistaat                      under which the notified aid measure is compatible with the
Sachsen (Germany), represented by T. Lübbig, lawyer.                          common market.
The applicant claims that the Court should:
                                                                              In the alternative, the applicant submits that the Commission
—       annul Article 2(2), Article 3 and Article 4 of Commission
                                                                              ought to have authorised the notified aid measure even if this
        Decision C(2002) 2606 of 24 September 2002 on
                                                                              had been examined on the basis of Regulation (EC) No 70/
        Germany’s intended aid rules ‘Guidelines on the pro-
        motion of small and medium-sized businesses —                         2001, which entered into force only after the notification.
        Improvement of efficiency of enterprises in Sachsen’;
—       order the defendant to pay the costs.
                                                                              Finally, the applicant claims that the Commission has not
                                                                              adequately shown the existence of a restriction of competition.
Pleas in law and main arguments
                                                                              (1 ) Commission Regulation (EC) No 70/2001 of 12 January 2001 on
In the context of its promotion of small businesses, the                           the application of Articles 87 and 88 of the EC Treaty to State aid
                                                                                   to small and medium-sized enterprises (OJ 2001 L 10, p. 33).
applicant grants members of the professions and small and
                                                                              (2 ) OJ 1992 C 213, p. 10.
medium-sized enterprises with a registered office or place of                 (3 ) OJ 1996 C 213, p. 4.
business in Sachsen, on application, subsidies by way of the
promotion of projects in order to promote the economy. This
promotion is based on the ‘Guidelines of the Sachsen State
Ministry for the Economy and Labour on the promotion of
small and medium-sized businesses — Improvement of the