Case T-343/02: Action brought on 15 November 2002 by Roland Schintgen against Commission of the European Communities
Date: 2003-01-25
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), distribution of votes, invalidity of an election, trade union

C 19/38

EN

Official Journal of the European Communities

25.1.2003

Pleas in law and main arguments

Applicant for the Com-
munity trade mark:

Moser Grupo Media, S.L.

The Community trade
mark concerned:

The figurative trade mark ‘Moser
Grupo Media, s.l.’ for goods and
services in classes 9, 16, 38, 39
and 41 (application no 409664)

The applicant, Metro-Goldwin-

Proprietor of the right to
the trade mark or sign Mayer Lion Corporation
asserted by way of oppo-
sition in the opposition
proceedings:

sign

Trade mark or
Several national rights and com-
asserted by way of oppo- munity trade mark application
no 141820 of the word mark
sition in the opposition
‘MGM’ for goods and services in
proceedings:
classes 9, 38 and 41

Decision of the Oppo-
sition Division:

Rejection of the community trade
mark application no 409664 of
Moser Grupo Media, disregarding
some of
the earlier rights and
community trade mark appli-
cation no 141820 by the applicant
in the present case for the word
mark ‘MGM’

Decision of the Board of
Appeal:

Rejection of the appeal by the
opponent, applicant in the pre-
sent case, as inadmissible

Grounds of claim:

— Infringement of Article 58 of
Regulation 40/94 (1)in so far
as the applicant is adversely
affected by the decision of
the Opposition Division.
According to the applicant,
it is still possible for Moser
Grupo Media to convert its
trade mark
community
application
other
countries with the advantage
of using the date of its Com-
munity trade mark appli-
cation. This would not have
been possible if
the trade
mark application had been
rejected on the grounds of
the applicant’s Community
trade mark application.

in

— Violation of Articles 42 and
8 of Regulation 40/94.
According to the applicant,
an opposition can be based
on an earlier community tra-
de mark application that is
not yet registered as a trade
mark.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 11, p. 1).

Action brought on 15 November 2002 by Roland Schint-
gen against Commission of the European Communities

(Case T-343/02)

(2003/C 19/73)

(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 15 November 2002 by Roland
Schintgen, residing in Keispelt (Luxembourg), represented by
Lucas Vogel, lawyer.

The applicant claims that the Court should:

— annul the decision adopted by the appointing authority
on 16 July 2002 rejecting the complaint lodged by the
applicant on 28 February 2002 requesting the annulment
of the elections to the local staff committee, the appoint-
ment of the elected members to the staff committee and
the refusal by the Commission to annul the aforemen-
tioned elections and declare that the local staff committee
in Luxembourg, formed following the said elections, was
not validly constituted;

— annul, in so far as necessary, the abovementioned elec-
tions to the local staff committee in Luxembourg, together
with the appointment of the elected members consequent
thereupon and annul the refusal by the Commission to
annul the elections and declare unlawful the composition
the local staff committee in Luxembourg which
of
resulted therefrom;

— order the defendant to pay the costs of proceedings and
the expenses necessarily incurred for the purpose of the
proceedings,
in particular the travel and subsistence
expenses and the remuneration of lawyers.

25.1.2003

EN

Official Journal of the European Communities

C 19/39

Pleas in law and main arguments

The applicant claims that the Court should:

By his application, the applicant seeks the annulment of the
decision of the appointing authority rejecting his complaint
requesting the annulment of the elections to the local staff
committee in Luxembourg of November 2001.

the list put

According to the applicant,
forward by the
‘Solidarité Européenne’ union obtained only one of the 20
seats to be filled on the local staff committee, whereas the
number of votes for the members of that union constituted
25,523 % of the total votes cast.

In support of his arguments, the applicant alleges:

— infringement of Article 9(3) of the Staff Regulations,

— infringement of Article 1 of Annex II

to the Staff

Regulations,

1.

2.

3.

annul the Commission’s (EUROSTAT) decision to elimin-
ate European Dynamics from the procurement procedure
for the Call for Tenders 2002/S 106-083279 - Lot 1 for
the ‘Further development of the Collaborative Software
CIRCA’;

order the Commission (EUROSTAT)
to evaluate the
tender submitted by European Dynamics in the above
mentioned procurement procedure and allow European
Dynamics to participate fully and on the same basis as all
the other tenderers;

order the Commission to pay European Dynamics’ legal
and other fees and expenses incurred in connection with
this application.

— infringement of Article 6 of the rules on the composition

and functioning of the staff committee,

Pleas in law and main arguments

— manifest error of assessment.

The applicant claims that the abovementioned provisions
require a faithful representation, on the local staff committee,
of all the tendencies expressed through the ballot box. Such
representation is not sufficiently guaranteed where more than
a quarter of the total votes cast by officials results in the
appointment of only 1/20th of the members of the staff
committee.

for ‘Eurostat

The applicant is a company involved in the area of information
technology and communications. It participated in the Call for
information
Tenders 2002/S 106 -083279,
systems: information and communication technologies for the
Community statistical system’ and, more particularly, Lot 1 of
the Call for Tenders, ‘further development of the collaborative
software CIRCA’. The applicant’s tender was rejected by the
defendant because of the absence of details concerning the
educational and professional qualifications in the curriculum
vitae of at least one of the experts, in a team of 27 persons.

Action brought on 21 November 2002 by European
Dynamics against the Commission of the European Com-
munities

(Case T-345/02)

(2003/C 19/74)

(Language of the case: English)

its application,

In support of
the applicant submits that
the decision to reject its tender breaches the principle of
the
proportionality. The tender was rejected because of
absence of details in one curriculum vitae, whereas the tender
requirements referred in broad and general terms to the
experience of the team, without any further specification.

The applicant furthermore alleges that the contested decision
is vitiated by a manifest error of assessment. According to the
applicant, the defendant failed to exercise its power to seek
clarification on this matter and therefore breached its duty of
care and the principle of good administration.

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 21 November 2002 by European
Dynamics (Athens), represented by W. Knapp, Rechtsanwalt,
and D. Spanou, Advocate.

The applicant also claims that by not seeking clarification and
thereby eliminating the applicant’s tender, the defendant did
not respect the equal treatment of tenderers. According to
the applicant, an evaluation committee does not enjoy an
to seek clarification
unfettered discretion to seek or not
concerning an individual tender regardless of objective con-
siderations and free from judicial supervision.