Case T-50/05: Action brought on 28 January 2005 by European Dynamics SA against the Commission of the European Communities
Date: 2005-04-30
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), award of contract, invitation to tender, services contract, software

30.4.2005

EN

Official Journal of the European Union

C 106/27

Action brought on 31 January 2005 by Reckitt Benckiser
N.V. against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs)

Action brought on 28 January 2005 by European
Dynamics SA against the Commission of the European
Communities

(Case T-49/05)

(2005/C 106/59)

(Language of the case: English)

An action against the Office for Harmonisation in the Internal
Market
(Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on 31
January 2005 by Reckitt Benckiser N.V., established in Hoofd-
dorp (the Netherlands) represented by G.S.P. Vos, lawyer.

The applicant claims that the Court should:

— annul the decision adopted on 11 November 2004 by the
Second Board of Appeal of the Office for Harmonisation in
the Internal Market (Trade Marks and Designs);

— allow registration

of

the Community

trade mark

2 792 554;

— order the Office for Harmonisation in the Internal Market

to pay the costs.

Pleas in law and main arguments

Community trade mark
concerned:

the shape of

three-dimensional

mark
A
consisting of
the
product being a rectangular tablet
consisting of a blue top layer with
red speckles and in it a sunken
shining mother of pearl ball and a
layer with green
lower white
in class 1
speckles,
(water
3
and
softeners
(laundry preparations etc.)

for goods

etc.)

Decision of
iner:

Decision of
of Appeal:

Pleas in law:

the exam-

Refusal of registration

the Board

Dismissal of the appeal

Misapplication of Article 7(1)(b) of
Regulation (EC) No 40/94 (1)

Misapplication of Article 7(1)(c) of
Regulation (EC) No 40/94

(1) Council Regulation (EC) No 40/94 of 20.12.1993 on the Com-

munity trade mark (OJ L 11, p. 1).

(Case T-50/05)

(2005/C 106/60)

(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 28 January 2005 by European
Dynamics SA, established in Athens (Greece), represented by N.
Korogiannakis, lawyer.

The applicant claims that the Court should:

— annul the decision of the Commission (DG TAXUD), to
evaluate the applicant's bid as not successful and award the
contract to the successful contractor;

— order the Commission to pay the applicant's legal costs and
other costs and expenses incurred in connection with the
application, even if the application is rejected.

Pleas in law and main arguments

The applicant company filed a bid in response to the Commis-
sion's call for tenders TAXUD/2004/AO-004 for the specifica-
tion, development, maintenance and support of
telematic
systems to control the movements of products subject to excise
duty within the European Community. By the contested deci-
sion this bid was rejected and the contract awarded to another
bidder.

In support of its application for annulment of that decision the
applicant claims first of all that the Commission violated the
principle of non-discrimination and of free competition. The
unavailability of exact specifications for the EMCS system
prevented tenderers
from presenting their expertise in a
targeted manner in the specific areas that were important for
the project. The access
to privileged information by the
previous and current contractors constituted a major and exclu-
sive advantage for them. The applicant claims that its timely
request for equal access rights to such applications and docu-
mentation should have been accepted. According to the appli-
cant, even though the Commission had the opportunity to
remedy this situation it did not take appropriate measures to
do so.

C 106/28

EN

Official Journal of the European Union

30.4.2005

The applicant further submits that the Commission violated
Article 97(1) of the Financial Regulation (1) as well as Article
17(1) of Directive 92/50 (2) by using evaluation criteria that
were extremely vague and were not accompanied by clear
quantifiable parameters.

European Communities on 8 February 2005 by Ireland repre-
sented by D.J. -O'Hagan, agent, assisted by P. Gallagher and P.
McGarry, Barristers, and with an address for service in Luxem-
bourg.

that

further

applicant

The
the Commission
considers
committed manifest errors of appreciation in its evaluation of
the applicant's tender. In this respect the applicant contends
that any deficiencies of its bid were due to the Commission's
failure to communicate critical elements required by the appli-
cant in order to prepare its bid. The applicant further contests
each of the statements contained in the report of the Evaluation
Committee.

The applicant also invokes a violation, by the Commission, of
its obligation, under Article 253 EC, to state reasons and a
failure to provide pertinent information requested by the appli-
cant on the grounds for the rejection of its bid. The applicant
also submits that the Commission violated the principle of
good administration and diligence by acting with significant
delay and by not offering adequate answers to the applicant's
requests for information prior to the submission of the bids.

(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 L 248, 16/09/2002 p. 1.

(2) Council Directive 92/50/EEC of 18 June 1992 relating to the coor-
dination of procedures for the award of public service contracts, OJ
L 209, 24/07/1992 p. 1.

Action brought on 8 February 2005 by Ireland against the
Commission of the European Communities

(Case T-56/05)

(2005/C 106/61)

(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

The applicant claims that the Court should:

— annul (in whole or in part) Commission Decision C (2004)
4447 of 29 November 2004 reducing the assistance from
the cohesion fund to project 96/07/61/007 (Dublin Region
Water Supply Scheme — Stage 3), granted by the Commis-
sion Decision C(97) 4090 of 15 December 1997 and redu-
cing the assistance from the cohesion fund to Project No.
95/07/65/007,
(N1 Dunleer — Dundalk Road Stage 2)
granted by the Commission Decision C (96) 2113 of 29
July 1996 in respect of such period or amounts as the
Court should determine;

— order the Commission to bear the costs of these proceed-

ings.

Pleas in law and main arguments

By virtue of Commission Decision C(97) 4090 of 15 December
1997, assistance was granted from the Cohesion Fund to
Project 96/07/61/007 (Dublin Region Water Supply Scheme —
Stage III) in Ireland. By Commission Decision C (96) 2113 of
29 July 1996 assistance was granted from the Cohesion Fund
to Project No. 95/07/65/007, (N1 Dunleer — Dundalk Road
Stage II), also in Ireland. By the contested decision the Commis-
sion reduced the amounts of total assistance granted under the
invoking various irregularities found
two previous decisions,
during the
the projects concerned. The
Commission also decided that a total amount of EUR 797 886
had been unduly received and should be recovered by reimbur-
sement.

examination of

In support of its application to annul the contested decision the
applicant submits first of all that the contested decision is
invalid, having been adopted more than three months after the
date of the oral hearing, in violation of Article 18(3) Regulation
1386/2002 (1) and Article H(2) of Annex II
to Regulation
1164/94 (2). According to the applicant
this constitutes a
breach of an essential procedural requirement as well as an
infringement of the principle of legal certainty.