Case T-197/03: Action brought on 30 May 2003 by Proras S.r.l. Engineering and Contracting against Commission of the European Communities
Date: 2003-08-02
Institutions: Court of First Instance
Subjects: EU financing, EU programme, European Commission, action for annulment (EU), award of contract, economic sanctions, foreign market

2.8.2003

EN

Official Journal of the European Union

C 184/51

— An alleged infringement of

the EC Treaty and of
secondary Community legislation in that
the contested
measure actually infringes Article 95(3) and Directive 76/
768/EEC which
harmonisation
require Community
measures to be based on a ‘high level of protection’ of
health, safety, environment and consumers.

— The applicant also advances a manifest error of assess-
ment in that the contested measure allegedly fails to take
account of scientific assessments made by the Community
advisory bodies.

In support of its application to annul the provisions relating to
the
the prohibition of carcinogenic and similar substances,
applicant advances the following grounds:

— An alleged manifest error of assessment and inconsistency
with Directive 76/768/EEC. According to the applicant the
inconsistent with the risk-based
contested measure is
approach in the latter Directive.

— An alleged infringement of

in that

an essential procedural
the prohibition should have been
requirement,
made subject
to the prior consultation and positive
opinion of the Scientific Committee on Cosmetic Products
and Non Food Products
in
intended for Consumers,
accordance with Article 8(2) of Directive 76/768/EEC.

— An alleged infringement Article 95(3) of the EC Treaty

and the rules adopted for its application,

Further,
the applicant alleges that both contested provisions
infringe superior principles of Community law, namely the
legal certainty and legitimate
principles of proportionality,
expectations,
the principle of
consistency, the principle of equal treatment and the need to
consider the balance of interests.

the precautionary principle,

(1) OJ L 66, 11.3.2003, p. 26-35.
(2) OJ L 262, 27.9.1976, p. 169-200.

Action brought on 30 May 2003 by Proras S.r.l. Engi-
the
neering and Contracting against Commission of

European Communities

(Case T-197/03)

(2003/C 184/108)

(Language of the case: Italian)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the

European Communities on 30 May 2003 by Proras S.r.l.
Engineering and Contracting,
represented by Gian Michele
Roberti, Alessandro Maria Lerro, Marco Simone Mariani, Paolo
Ziotti and Isabella Perego, lawyers.

The applicant claims that the Court should:

— annul

the

decision of

European Commission
the
contained in the letter of 19 March 2003 from Mr P.B.
Knudsen, Director of Directorate A — Office of Coopera-
‘Proras exclusion from
tion, EuropeAid, D(2003) D/8511,
participation in a TACIS procurement procedure’;

— find the Commission liable

in damages

for having

adopted the abovementioned decision;

— order the defendant to make good the injury suffered by
the applicant as a result of
that damage, quantified at
EUR 1 177 638,24 and further order the publication of
any judgment to that effect;

— order the Commission to pay the costs.

Pleas in law and main arguments

By the present action, Proras S.r.l. Engineering and Contracting
(hereinafter ‘Proras’ or ‘the applicant’) is challenging the deci-
sion of the Commission contained in the letter of 19 March
2003 from Mr P.B. Knudsen, Director of Directorate A —
‘Proras
Office of Cooperation, EuropeAid, D(2003) D/8511,
exclusion from participation in a TACIS procurement proce-
dure’ by which it imposes, on the basis of Article 93(c) and (f)
in conjunction with Article 96 of Regulation No 1605/
2002, (1) a sanction consisting in exclusion for
two years
from tender procedures organised in the context of external
actions funded by the Commission in the framework of the
TACIS programme and, pursuant to Articles 235 and 288 EC,
compensation for
that
decision. That decision was adopted after a procedure which
contained a number of irregularities, denied by the applicant,
which, according to the defendant, were committed in the
SCR — E/110983/D/S/NI,
course
published by the unit ‘Programma de apoyo al Sector Educa-
tivo en Nicaragua’ and financed under the ‘ALA’ programme.

the damage suffered as a result of

procedure

tender

of

In support of its action for annulment, Proras puts forward
four pleas in law. First, the applicant claims that the EuropeAid
department, by adopting as a legal basis for the contested
decision a provision — such as Regulation No 1605/2002 —
which had not entered into force at the material time, has
infringed the principles of retroactivity, lawfulness of sanctions
and legitimate expectations. So far as concerns procedure, the
applicant criticises the aforementioned department for failing
to inform it of the steps it intended to take in terms of the
sanctions it proposed to impose on it or, at the very least,

C 184/52

EN

Official Journal of the European Union

2.8.2003

the

applicant

giving it the opportunity to be heard, contrary to the rights of
defence and the principle of sound administration. As to
substance,
first misapplication of
alleges,
Article 93(c) and (f) of Regulation No 1605/03 and, secondly,
infringement of Article 96 of
the
principle of proportionality in determining the level of sanc-
tions. The applicant
further alleges a defective statement of
reasons in respect of the latter claims.

regulation and of

that

Community
sought:

trade mark

trade mark ‘COMP
Figurative
USA’ — Application
no
2 133 202 for
in
Classes 9 and 37 (items related
to computers)

goods

The applicant thus seeks compensation for the damage caused
by the sanctions unlawfully imposed by the contested decision;
such damage is not only economic in nature but
is also
detrimental to the image and reputation of the company.

Proprietor of mark or sign
cited in the opposition pro-
ceedings:

The applicant

(1) Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002
on the Financial Regulation applicable to the general budget of the
European Communities (OJ 2002 L 248, p. 1).

Mark or sign cited in op-
position:

figurative

trade
The
mark ‘COMP USA’ for goods in
Class 39 (transport)

English

Decision of the Opposition
Division:

Rejection of the opposition

Action brought on 2 June 2003 by Alecansan, S.L. against
the Office for Harmonisation in the Internal Market
(Trade Marks and Designs) (OHIM)

(Case T-202/03)

(2003/C 184/109)

(Language of the case: Spanish)

Decision of
Appeal:

Pleas in law:

the Board of

Dismissal of the appeal

Misapplication of Article 8(1)(b)
of Regulation (EC) No 40/94
(likelihood of confusion)

An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM) was brought before
the Court of First Instance of the European Communities on
2 June 2003 by Alecansan, S.L., with its registered office in
Madrid, represented by María Baylos Morales, Pedro Merino
Baylos and Jesús Arribas García, lawyers at the Madrid Bar.

The applicant claims that the Court should:

— annul the decision of the First Board of Appeal of OHIM

of 24 March 2003 in Case R 711/2002-1;

— annul

the decision of OHIM's Opposition Division of

17 June 2002;

— declare the mark claimed and the applicant's trade mark
with priority incompatible pursuant to Article 8(1)(b) of
Regulation No 40/94 on the Community trade mark;

— refuse registration of the Community trade mark ‘COMP

USA’, no 849 497, for Classes 9 and 37; and

— order the defendant, and the intervener if he intervenes in

the action for annulment, to pay the costs.

Pleas in law and main arguments

Applicant
trade mark:

for Community

CompUSA Management Com-
pany

Action brought on 11 June 2003 by Nicolas Georgio-
the
poulos

the Commission of

and Others

against

European Communities

(Case T-205/03)

(2003/C 184/110)

(Language of the case: French)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 11 June 2003 by Nicolas Georgio-
poulos, residing in Brussels, and 4 other officials, represented
by G. Bounéou and F. Frabetti,
lawyers, with an address for
service in Luxembourg.

The applicants claim that the Court should:
— annul the decision of the competent hierarchical authority
changing, with effect from a year not further specified
(1993, 1996, 1997, or another year, and for the period
during which the applicants were officials of the Commis-
sion of
the procedure for
calculating the annual expense of travelling to Greece in
respect of the journey via Brindisi, as taken into consid-
eration for destinations in the Pelopponese;

the European Communities),

or, in the alternative,