Case T-303/04: Action brought on 29 July 2004 by European Dynamics SA against the Commission of the European Communities
Date: 2004-10-23
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), award of contract, information analysis, invitation to tender, provision of services, software

C 262/40

EN

Official Journal of the European Union

23.10.2004

The applicants contend that the negotiations between CB and
EB on the processing of securities transactions in respect of
German registered shares lasted, not for close on two years, but
for nine months at most. The reasons for the length of this
period, they argue, lay with EB and not with CB. At no point
did CB have an interest in, let alone the intention of, denying
to EB services which it provides for other clients.

The applicants submit further that the fact could not be over-
looked during negotiations that the processing of securities
transactions in respect of German registered shares had no
significance whatever for the exchange of services between CB
and EB. In their calculation of prices the applicants followed
the principle that comparable clients should be given equal
treatment. EB, they submit, is not comparable to the group of
clients which the Commission has used as the basis for its
charge of discrimination.

The applicants also contend that
the Commission never
claimed that Clearstream International S.A. Luxembourg (‘CL’)
was an undertaking with a dominant market position. For that
reason alone it could not have abused any dominant market
position. Furthermore, the objectively relevant market was inac-
curately defined in the decision. The applicants take the view
that
the distinction drawn by the Commission between
‘primary’ and ‘secondary’ processing services cannot be based
on objective grounds and is even contradictory. There is, they
argue, only one single objectively relevant market for clearing
and settlement. CB does not have a dominant position on this
objectively relevant market
for all clearing and settlement
services. Neither CB nor CI is thus a party to which the rule in
Article 82 EC can be addressed. The decision must be quashed
in any event on grounds of erroneous market definition and —
consequently — of the absence of market domination.

Action brought on 26 July 2004 by Maison de l'Europe
the
Avignon Méditerranée against

the Commission of

European Communities

(Case T-302/04)

(2004/C 262/76)

(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 26 July 2004 by Maison de l'Europe
Avignon Méditerranée, established in Avignon (France), repre-
sented by François Martineau, lawyer.

The applicant claims that the Court should:

— order the Commission to pay the entirety of the recoverable
fixed in the sum of

the amount of which is

costs
EUR 10 000.

Pleas in law and main arguments:

According to the applicant, the Commission had since 1996
informally allowed the applicant
to set up an Info Point
Europe. In 2000, the applicant entered into an agreement with
the Commission for the creation of an Info Point Europe, in
the applicant's view thereby formalising the situation. In 2004,
the agreement was terminated by the Commission.

By this action, the applicant seeks to have the Commission
held contractually liable in order to obtain payment for the
supplies rendered by the applicant since 1996 in the context of
its task as a European information centre for the Commission.

According to the applicant, the Commission has breached its
contractual obligations and is
late
payment, for services rendered during the festival of Avignon
and for the cost of running a European documentation centre
since 1996.

liable for

interest

for

Action brought on 29 July 2004 by European Dynamics
SA against the Commission of the European Communities

(Case T-303/04)

(2004/C 262/77)

(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 29 July 2004 by European
Dynamics SA, Athens, Greece, represented by Mr S. Pappas,
lawyer.

The applicant claims that the Court should:

— annul

the Commission's Contract Notice 2003/S249-

221337 ESP-DIMA;

— annul the Commission's call

for tenderers PO/2003/192

(ESP-DIMA);

— annul the Commission's Decision of 4 June 2004 ranking
the offer of European Dynamic's consortium only second
after the first successful tenderer;

— annul the Commission's Decision of 14 July 2004 rejecting
the applicant's appeals against the award of the tender;

— order the Commission to pay the sum of EUR 394 066.76
in respect of its failure to perform its financial obligations
to the Maison de l'Europe Avignon Méditerranée;

— order the Commission to pay European Dynamic's legal
and other fees and expenses incurred in connexion with
this application.

23.10.2004

EN

Official Journal of the European Union

C 262/41

Pleas in law and main arguments:

Pleas in law and main arguments:

The applicant is part of a consortium that was the successful
tenderer as service provider for ESP Lot 5, web applications.
ESP Lot 4, Data/Information management applications, was
awarded to another consortium.

Community trade mark
sought:

Olfactory mark
‘ODEUR DE
FRAISE MÛRE’ accompanied by
a graphic
a
of
strawberry
Registration
No 001122118.

representation

—

According to the applicant, the tender contested in the present
application, ESP-DIMA, was based on the wrong assumption
that the provision of services for data and information manage-
ment constitutes a new market and that the use of ESP Lot 4
had exceeded all expectations. The applicant submits that the
Commission has wrongly allocated work to ESP Lot 4 that,
according to the applicant, actually fell within ESP Lot 5. The
applicant states that, as a result,
the Commission had to
increase the budget forecast for ESP Lot 4 and issue a new
tender ESP-DIMA while the budget used for ESP Lot 5
remained behind the provisions.

furthermore submits

the Commission
The applicant
infringed an essential procedural requirement in that at least
one member of the evaluation committee of the contested
tender had a conflict of interest with the applicant.

that

the applicant claims

Finally,
second
successful tenderer for ESP-DIMA is not sufficiently justified.
The applicant also submits that the Commission refused to
disclose information regarding the evaluation report.

ranking as

that

its

Action brought on 26 July 2004 by Eden against the
Office for Harmonisation in the Internal Market (OHIM)

(Case T-305/04)

(2004/C 262/78)

(Language of the case: French)

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 26 July 2004 by Eden, estab-
lished in Paris, represented by M. Antoine-Lalance, lawyer.

The applicant claims that the Court should:

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

24 May 2004 (Case R 591/2003-4);

Goods or services:

Goods in Classes 3, 16, 18 and
25.

Decision
before
Appeal:

contested
the Board of

Refusal
examiner.

to

register

by

the

Decision of
of Appeal:

Pleas in law:

the Board

Dismissal of the appeal.

Infringement of Article 7(1)(a) of
Regulation No 40/94.

Action brought on 15 July 2004 by Monika Luxem against
the Commission of the European Communities

(Case T-306/04)

(2004/C 262/79)

(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 15 July 2004 by Monika Luxem,
residing in Brussels, represented by Sébastien Orlandi, Albert
Coolen, Jean-Noël Louis and Etienne Marchal, lawyers, with an
address for service in Luxembourg.

The applicant claims that the Court of First Instance should:

— annul the Commission's decision not to appoint her an offi-
cial of the European Communities, not to assign her to DG
DEV/A 2 to the post declared vacant under reference COM/
2002/6022/F and refusing to assign her to any other post
corresponding to her abilities and her professional qualifica-
tions and experience;

— order OHIM to pay the costs.

— order the defendant to pay the costs.