CELEX: C2003/275/88
Language: en
Date: 2003-11-15 00:00:00
Title: Case T-328/03: Action brought on 25 September 2003 by O2 (Germany) GmbH & Co. OHG against Commission of the European Communities

C 275/52              EN                         Official Journal of the European Union                                        15.11.2003
Community trade mark          Word mark ‘LA BARONNIE’ —                  —     annul the decision of the Commission not to include his
sought:                       Application No. 2 057 487 for                    name on the list of promoted officials published in AN
                              products in Class 33 (alcoholic                  No 2002-69 of 14 August 2002;
                              beverages, except beers).
                                                                         —     order the Commission to pay him token damages of
Proprietor of mark or         The applicant.                                   EUR 1 for the damage suffered by him as a result of the
sign cited in the oppo-                                                        failure to draw up the staff report for the period 1997 to
sition proceedings:                                                            1999;
Mark or sign cited in         National word mark ‘BARONIA’               —     order the Commission to pay the costs.
opposition:                   for products covered by Class 33
                              (‘wines of all types’).
Decision of the Oppo-         Opposition refused.
sition Division:                                                         Pleas in law and main arguments
Decision of the Board of      Appeal dismissed.
Appeal:                                                                  In support of his application, the applicant alleges infringement
                                                                         of Article 45 of the Staff Regulations, breach of the principle
Pleas in law:                 Incorrect        application      of       of equal treatment and non-discrimination and manifest error
                              Article 8(1)(b) of Regulation (EC)         of assessment.
                              No 40/94 (likelihood of con-
                              fusion).
                                                                         Action brought on 25 September 2003 by O2 (Germany)
                                                                         GmbH & Co. OHG against Commission of the European
                                                                                                  Communities
Action brought on 15 September 2003 by Heinrich
Winter against Commission of the European Commu-
                              nities                                                             (Case T-328/03)
                        (Case T-324/03)                                                          (2003/C 275/88)
                       (2003/C 275/87)                                                      (Language of the case: English)
                  (Language of the case: French)
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
                                                                         European Communities on 25 September 2003 by O2 (Germ-
An action against the Commission of the European Communi-                any) GmbH & Co. OHG, Munich, Germany, represented by Mr
ties was brought before the Court of First Instance of the               N. Green QC, Mr K. Bacon, Barrister, Mr B. Amory, lawyer and
European Communities on 15 September 2003 by Heinrich                    Ms Francesca Marchini Camia, lawyer.
Winter, residing in Overijse (Belgium), represented by Sébasti-
en Orlandi, Albert Coolen, Jean-Noël Louis and Étienne
Marchal, lawyers.
                                                                         The applicant claims that the Court should:
The applicant claims that the Court should:                              —     annul articles 2 and 3(a) of the Commission Decision of
                                                                               16 July 2003 in case COMP/38.369;
—     annul the decision of the Commission not to include his
      name on the list of officials deemed to be most deserving          —     order the Commission to pay the applicant’s costs;
      of promotion to Grade A 4 for the 2002 promotions
      procedure published in Administrative Notices (AN)                 —     make any such further order as the Court deems appro-
      No 2002-68 of 12 August 2002;                                            priate.
 ---pagebreak--- 15.11.2003            EN                       Official Journal of the European Union                                           C 275/53
Pleas in law and main arguments                                        Action brought on 25 September 2003 by Ricci Fabio
                                                                       Andrés against the Commission of the European Com-
                                                                                                     munities
The contested decision concerns an agreement between the
applicant, O2, and T-Mobile Deutschland GmbH. The agree-                                         (Case T-329/03)
ment provides for infrastructure sharing and national roaming
for the third generation of mobile telecommunications in the
German market.                                                                                  (2003/C 275/89)
                                                                                           (Language of the case: Italian)
The agreement was notified to the Commission and O2 and T-
Mobile requested negative clearance under Article 81(1) EC
and Article 53(1) EEA, or in the alternative for an exemption
under Article 81(3) EC and Article 53(3) EEA. Negative
clearance was granted in respect of the infrastructure sharing         An action against the Commission of the European Communi-
provisions. The Commission found however that the national             ties was brought before the Court of First Instance of the
roaming provisions restricted competition, but granted indi-           European Communities on 25 September 2003 by Ricci Fabio
vidual exemptions for these provisions under Article 81(3) Ec          Andrés, represented by Massimo Condinanzi, avvocato.
and Article 53(3) EEA for specified periods of time.
                                                                       The applicant claims that the Court should:
The applicant seeks the annulment of the specific provisions
of the decision that address the restrictions of competition           1.    Annul the decision rejecting the applicant’s candidature
alleged to flow from national roaming, namely article 2                      in the competition COMR/B/04/2000 — Radiation pro-
and 3(a) of the contested decision. The applicant submits that               tection, notified to the applicant by letter of 28 November
the Commission’s reasoning errs in law and is insufficient.                  2002, no. B01-HR/RRA/BDU/D (2002) 14307, from the
                                                                             Director of DG JRC, Mr Jean-Pierre Vandersteen;
                                                                       2.    Order the Commission to pay the costs.
Firstly, the applicant claims that there is no restriction on
competition within the meaning of Article 81(1) EC or
Article 53(1) EEA. According to the applicant, the decision
does not rest on an analysis of the actual effects of the
agreement on competition. The Commission would simply                  Pleas in law and main arguments
rely on the assumption that the purchase by one network
operator of network services from another operator will
restrict competition between the two on coverage, quality,
transmission rates or wholesale prices. The applicant submits          The present action is brought against the decision contained
furthermore that this assumption is contradicted by the                in the letter of 28 November 2002 of the Director of JRC
Commission’s own factual findings and by the case-law of the           Resources in Ispra by which the applicant, who was none the
Court and the practice of the Commission.                              less on the reserve list for the selection procedure COMR/B/
                                                                       04/2000, was notified that he did not satisfy all the necessary
                                                                       requirements for recruitment, thereby excluding him from the
                                                                       recruitment procedure.
The applicant claims secondly that the alleged restrictions of
competition do not flow from an agreement within the
meaning of Article 81(1) EC or Article 53(1) EEA, but rather           In support of his pleas the applicant alleges:
result from the unilateral actions of the applicant. According
to the applicant, the agreement does not contain any provision
restricting the competition by the applicant on coverage,              —     Breach of the independence and powers of the selection
quality, transmission rates and wholesale prices, and any                    board for the competition in question.
restriction that could arise from the agreement, would be the
result of the unilateral commercial decisions of the applicant.        —     Breach of the vacancy notice by failing to consider that it
The applicant therefore submits that the agreement is not the                allowed access to a Category C post. It is stated in this
cause of the alleged restriction on competition.                             regard that the vacancy notice was drawn up with
                                                                             reference to access to Category C3-B5/B3 in the scientific
                                                                             service. The defendant erred in stating, after the compe-
                                                                             tition, that the selection procedure was for access exclus-
                                                                             ively to a Category B post.