Case T-495/04: Action brought on 23 December 2004 by Belfass against the Council of the European Union
Date: 2005-03-05
Institutions: Court of First Instance
Subjects: Council of the European Union, action for annulment (EU), award of contract, services contract

C 57/34

EN

Official Journal of the European Union

5.3.2005

Pleas in law and main arguments

Community trade mark
sought:

Figurative mark ‘BIN LADIN’
in
Arabic characters for goods and
services in Classes 9, 12, 14, 18,
25, 28, 35 and 41 – Application
No 2 224 160.

— in any event, award EUR 30 000 in respect of compensa-
tion for the non-material and material damage suffered by
the applicant, that sum being provisionally assessed on an
equitable basis;

— order the defendant to pay all the costs.

the exam-

Refusal to register.

Pleas in law and main arguments:

Decision of
iner:

Decision of
of Appeal:

Pleas in law:

the Board

Dismissal of the appeal.

Infringement of Article 7(1)(f) of
Council Regulation No 40/94. The
applicant claims that registration
of the mark in question would not
be contrary to either public policy
or accepted principles of morality.

Action brought on 22 December 2004 by Wineke Neir-
inck against the Commission of the European Commu-
nities

(Case T-494/04)

(2005/C 57/58)

(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 22 December 2004 by Wineke
Neirinck, residing in Brussels (Belgium), represented by Georges
Vandersanden, Laure Levi and Aurore Finchelstein, lawyers.

The applicant claims that the Court should:

— annul the decision of which the applicant became aware at
the meeting of the OIB.1 unit (Office for Infrastructure and
Logistics – Brussels – implementation of buildings policy)
of 4 March 2004, by which another candidate had been
selected for the post of lawyer in the sector of buildings
policy in the OIB for which the applicant had applied;

— annul

the

confirmatory decision of 9 March 2004
that her application had been

informing the applicant
rejected;

The applicant, at the time a temporary agent at the Commis-
sion in the Office for Infrastructure and Logistics – Brussels
(OIB), applied for the post of lawyer in the sector of buildings
policy in the OIB. By her action, she seeks annulment of the
decisions rejecting her application and appointing another
person to the post
in question and compensation for the
alleged non-material and material damage she suffered.

In support of her action, the applicant relies on the failure to
have regard for the interests of the service and infringement of
the general principles of impartiality, objectivity, non-discrimi-
nation, transparency and the obligation to give reasons and an
abuse of due process. The applicant submits that the selection
of the person appointed to the post in question was decided
without any statutory procedure and without being preceded
by any comparative examination of the merits of that person
with those of the applicant. In the same context, the applicant
alleges a manifest error of assessment and infringement of the
duty to have regard for the interests of officials and good
administration. The applicant also alleges infringement of the
general principle of equal treatment by reference to the fact
that all the temporary and auxiliary agents of OIB, whose
contracts expired on 1 May 2004, remained in OIB beyond
that date with the exception of the applicant.

Action brought on 23 December 2004 by Belfass against
the Council of the European Union

(Case T-495/04)

(2005/C 57/59)

(Language of the case: French)

— annul the subsequent decision of 27 April 2004 informing
the applicant that she had not passed the oral test and thus
confirming the appointment of another person;

An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 23 December 2004 by Belfass, established in
Brussels (Belgium), represented by Lucas Vogel, lawyer.

5.3.2005

EN

Official Journal of the European Union

C 57/35

The applicant claims that the Court should:

Action brought on 23 December 2004 by Zhejiang Xinan
Chemical Industrial Group Co., Ltd against the Council of
the European Union

— annul the decision adopted by the General Secretariat of the
Council of the European Union rejecting the two tenders
entered by the applicant under call for tenders UCA 033/04
for the award of a contract for cleaning and maintenance
services of two office buildings in Brussels;

— order the defendant to pay the sum of EUR 1 481 317.65
together with interest, calculated at the rate of 7 % per
annum, from the date on which the present action was
brought, expressly subject to future increase, reduction or
determination;

— order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments:

The applicant in the present case, a company specialising in
the cleaning of offices which has been responsible since 1
January 1998 for the cleaning of certain offices of the General
Secretariat of the Council, challenges the rejection by the defen-
dant of two tenders submitted by the applicant in respect of a
tender relating to the conclusion of a contract for cleaning and
general services to be performed in the ‘Woluwe Heights’ (lot
1) and ‘Frère Orban’ (lot 2) buildings.

In support of its claims, the applicant alleges:

— the existence in the present case of a manifest error of
assessment in that, in order to reject the tender relating to
lot 1, the defendant claims that the average hourly rate
under that tender is less than the minimum wage laid down
by the Union générale belge du nettoyage (Belgian General
Cleaning Union) for category 1A, on 1 July 2004, whereas
a precise analysis of the figures in the applicant's tender
shows that the average hourly rate thereunder is above the
minimum figure set by the Union générale belge du
nettoyage;

— infringement of the principles of sound administration and
non-discrimination and the existence in the present case of
a manifest error of assessment in that the tender relating to
lot 2 was rejected, without further consideration, on the
sole ground that the total number of hours of work under
that tender was less by more than 12.5 % than the average
number of hours under the other tenders received for the
contract in question, whereas by using that criterion the
contested decision favours the most expensive tenders
providing for invoicing of an elevated number of hours,
without any objective purpose.

(Case T-498/04)

(2005/C 57/60)

(Language of the case: English)

An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 23 December 2004 by Zhejiang Xinan
Chemical
Jiande City (People's
Republic of China), represented by D. Horovitz, lawyer with an
address for service in Luxembourg.

Industrial Group Co., Ltd,

The applicant claims that the Court should:

— annul Article 1 of the contested Regulation in so far as it

concerns the applicant;

— order the Council to pay the costs of the applicant in the

present proceeding.

Pleas in law and main arguments

The applicant seeks the annulment of Council Regulation (EC)
No 1683/2004 of 24 September 2004 imposing a definitive
anti-dumping duty on imports of glyphosate originating in the
People's Republic of China (1), insofar as it concerns the appli-
cant. The applicant submits that the Community institutions
failed to apply properly the market economy treatment test to
it.

In support of its application, the applicant invokes a manifest
error of assessment in the application of Article 2(7)(c) of Regu-
lation No 384/96 (2), as amended.

The applicant claims that the Council did not state in the
contested regulation that there has been significant state inter-
ference in the applicant's business decisions. Also, the Council
did not apply, according to the applicant, the right threshold to
assess whether the criteria set in Article 2(7)(c) were fulfilled.
The applicant contests that the alleged right of the state to
intervene in the company's business decisions, without any
materialisation or exercise of that alleged right, was a factor
from which it could be inferred that
the first criterion of
Article 2(7)(c) was not fulfilled. The applicant submits further-
more that the evidence supplied clearly established that the
applicant's decisions on prices, costs and inputs responded to
market signals reflecting supply and demand, and that there
was no state interference in this regard.