Case T-212/03: Action brought on 18 June 2003 by MyTravel Group plc against the Commission of the European Communities
Date: 2003-08-23
Institutions: Court of First Instance
Subjects: European Commission, action for failure to act, dominant position, economic concentration, merger control

C 200/28

EN

Official Journal of the European Union

23.8.2003

Pleas in law and main arguments

Applicant
trade mark:

for Community

The applicant

Community
sought:

trade mark

Figurative mark ‘FABER’ Appli-
cation No 676.353 sought
for
products 1, 2 and 3 (chemicals
and industrial adhesives)

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

Industrias Químicas NABER
S.A.

Mark or sign cited in op-
position:

Nos

Spanish trade marks
(registration
2.072.120,
2.072.122)
classes 1, 2 and 3

for

‘NABER’
801.202,
2.072.121,
in

products

Decision of the Opposition
Division:

Rejection of the opposition

Decision of
Appeal:

the Board of

Dismissal of the appeal

Grounds of the application: Wrongful

application

of
Article 8(1)(b) of
(EC) Regula-
tion No 40/94 (risk of confu-
sion)

Action brought on 18 June 2003 by MyTravel Group plc
against the Commission of the European Communities

(Case T-212/03)

(2003/C 200/51)

(Language of the case: English)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 18 June 2003 by MyTravel Group
plc, Manchester, United Kingdom, represented by D. Pannick,
QC, Mr A. Lewis, Barrister, Mr M. Nicholson and Ms S. Cardell,
Solicitors.

The applicant claims that the Court should:
— order that the Commission should pay to the applicant
under Article 288(2) EC Treaty as compensation for

damage either
amount as the Court in its discretion might order;

the sum of

[CONFIDENTIAL] or such

— order that interest is payable in respect of the compensa-
tion awarded from the date of judgment establishing the
obligation to make good the damage in this case at the
rate of 8 % per annum or such other rate as the Court in
its discretion may order;

— order that the costs of this application should be paid by

the Commission.

Pleas in law and main arguments

The applicant, formerly know as Airtours plc, seeks compensa-
tion from the Commission by way of damages for harm
caused to it by the decision of
the Commission in Case
No IV/M.1524 — Airtours/First Choice (1), declaring the
concentration between the applicant and First Choice incom-
patible with the common market.

The applicant contends that the conduct of the Commission in
carrying out its review of
the proposed acquisition of First
Choice by Airtours breaches rules of law which are intended
to confer rights on individuals. The applicant claims more in
particular that the Commission infringed Article 2 of Council
Regulation 4064/89 on the control of concentrations between
undertakings (2) and the general principles of sound adminis-
tration, care and diligence.

The applicant submits that in committing these breaches the
Commission manifestly and gravely disregarded the limits of its
discretion, and that these breaches were sufficiently serious to
warrant reparation under Article 288 EC Treaty.

The applicant refers in this respect to the judgment in Case
T-342/99, Airtours/Commission (3), annulling the Decision of
the Commission in Case No IV/M.1524 — Airtours/First
Choice. The applicant submits that the Court of First Instance
made due allowance for the margin of appreciation permitted
to the Commission, but nonetheless found that the decision
was vitiated by a series of manifest errors of assessment
regarding the creation of a dominant position. Such a manifest
error established in annulment proceedings equates according
to the applicant,
to a manifest disregard for the limits of
discretion and constitutes a sufficiently serious breach.

The applicant also submits that the fact that the Commission
enjoys a margin of discretion does not absolve it from the
obligation to observe the principles of sound administration.

23.8.2003

EN

Official Journal of the European Union

C 200/29

these breaches, the applicant claims to have
As a result of
suffered loss. This loss consists firstly of the profits generated
by First Choice as reported in its audited accounts and that
would have accrued to the applicant if the acquisition had not
been prohibited by the Commission. Secondly, the applicant
claims the loss of synergy costs savings that would have been
obtained in consequence of the merger and, thirdly, the costs of
the abortive bid for First Choice which were wasted as a result
of the Decision of the Commission.

(1) 2000/276/EC: Commission Decision of 22 September 1999
declaring a concentration to be incompatible with the common
market and the EEA Agreement (Case IV/M.1524 — Airtours/First
Choice)
(Text
(notified under document number C(1999) 3022)
with EEA relevance) (OJ L 93 of 2000, p. 1).

(2) Council Regulation (EEC) No 4064/89 of 21 December 1989 on
the control of concentrations between undertakings (text repub-
lished in OJ L 257 of 1990, p. 13).

(3) Judgment of the Court of First Instance of 6 June 2002, Airtours/

Commission, T-342/99, ECR II-2585.

Action brought on 13 June 2003 by Francesco Contesso
against Commission of the European Communities

(Case T-213/03)

(2003/C 200/52)

(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 13 June 2003 by Francesco
Contesso, residing in Paris, represented by Sebastien Orlandi,
Albert Coolen, Jean-Noël Louis and Etienne Marchal,
lawyers,
with an address for service in Luxembourg.

The applicant claims that the Court should:

— annul the decision drawing up the definitive staff report
for the period from 1 July 1999 to 30 June 2001;

— order the Commission to pay the applicant a token one
the non-material damage

euro for compensation for
sustained;

— order the defendant to pay the costs.

Pleas in law and main arguments

In support of his application, the applicant pleads infringement
of the assessor's prior duty to consult senior assessors before
finalising the staff report, infringement of the assessor's duty to
require them to initial each of
the pages and to sign the
definitive staff report, infringement of the duty to give reasons,
in so far as the appeal assessor did not state why he did not
take account of
the hierarchical superiors
consulted.

the opinions of

Action brought on 13 June 2003 by SIGLA, S.A. against
the Office for Harmonisation in the Internal Market
(OHIM)

(Case T-215/03)

(2003/C 200/53)

(Language of the case: Spanish)

An action against the Office for Harmonisation in the Internal
Market (OHIM) was brought before the Court of First Instance
of the European Communities on 13 June 2003 by SIGLA,
S.A., with offices in Madrid, represented by E. Armijo Chávarri.

The applicant claims that the Court should:

— annul the decision of the Third Board of Appeal of OHIM
no. R 1127/2000-3 of 1 April 2003 on the ground that
it is inconsistent with Article 8(5) of Regulation No 40/
94;

— in the alternative, annul

the contested decision on the
ground that it prejudices SIGLA's rights of defence and
the principle underlying Article 74 of Regulation No 40/
94; and

— order OHIM to pay the costs.

Pleas in law and main arguments

Applicant
trade mark:

for Community

ELLENI HOLDING BV

Community
sought:

trade mark

Word mark ‘VIPS’ Application
No 459.875 sought
for pro-
ducts
services within
and
classes 9, 35 and 42 and, sub-
services
sequently,
within class 42 (computer pro-
gramming services
for hotels,
restaurants and cafes)

only

for

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

The applicant

Mark or sign cited in op-
position:

Spanish word mark ‘VIPS’
(re-
gistration No 551.436) for pro-
ducts of
class 42 (supplying
prepared food and drink for
consumption,
ser-
vice stations, canteens, bars and
cafeterias and hotel services)

restaurants,