Case T-68/05: Action brought on 16 February 2005 by Aker Warnow Werft GmbH and Kværner ASA against the Commission of the European Communities
Date: 2005-04-30
Institutions: Court of First Instance
Subjects: European Commission, State aid, action for annulment (EU), aid for restructuring, control of State aid, privatisation, shipbuilding

30.4.2005

EN

Official Journal of the European Union

C 106/33

— Annul the decision of the First Board of Appeal dated 8

The applicants claim that the Court should:

December 2004 in case R 309/2004-1;

— Order that the Office and other parties shall bear their own

— annul the Decision of the Commission C 6/2000 of 20

costs and pay those of the applicant.

October 2004, in its entirety;

Pleas in law and main arguments

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

ings.

Applicant
munity trade mark:

for

Com-

Criminal Clothing Limited

Community trade mark
concerned:

Word mark CRIMINAL for goods
in classes 3, 9 and 25 (articles of
clothing etc.) — application No
1676 220

Proprietor of mark or
sign cited in the opposi-
tion proceedings:

Trade mark or
cited in opposition:

sign

The applicant

National
CRIMINAL
mark
DAMAGE for goods in class 25
(articles of clothing etc.)

Decision of the Opposi-
tion Division:

Opposition rejected

Decision of
of Appeal:

Pleas in law:

the Board

Appeal dismissed

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

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

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

Action brought on 16 February 2005 by Aker Warnow
Werft GmbH and Kværner ASA against the Commission
of the European Communities

(Case T-68/05)

(2005/C 106/69)

(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 16 February 2005 by Aker
Warnow Werft GmbH, established in Rostock-Warnemünde
(Germany) and Kværner ASA, established in Oslo (Norway),
represented by B.
Immenkamp, Solicitor and M. Schütte,
lawyer.

Pleas in law and main arguments

In October 1992, the German privatisation agency (Treuhan-
danstalt) privatised and sold the East German shipyard Warnow
Werft to the Norwegian Kværner group. In the framework of
the privatisation, a lump sum contribution to the restructuring
of the shipyard, made available in different installments, was
offered. The state aid was notified to and approved by the
European Commission in separate approval decisions.

In the contested decision, the Commission concluded that the
applicants received more aid than was required to cover the
actual contract losses incurred by the shipyard, and that the
excess of aid should be recovered.

submit

In support of their application, the applicants submit that the
Commission committed an error of law and a manifest error of
appreciation. According to the applicants, the amount to be
recovered as state aid incompatible with the EC Treaty was
approved by the Commission in its approval decisions and
constitutes existing aid. The applicants
the
Commission had no right to initiate the formal procedure, to
re-assess the compatibility of the aid and to order the recovery
of parts of the aid. They submit also that all conditions in the
approval decisions of the Commission have been complied
with, in particular the obligation to provide Spill-Over Reports
and to observe capacity limitations. The applicants claim that
the approval decisions did not contain any reservation by the
Commission concerning the amount of aid and that all oper-
ating aid was approved in a lump sum, following a thorough
verification of the necessity of the aid ex ante. Finally, the
applicants state that the approval decisions are still in force.

that

that

furthermore submit

the Commission
The applicants
committed a manifest error of appraisal in concluding that the
amount of state aid received exceeded the level of contract
losses incurred. According to the applicants, the amount of the
aid indicated in the contested decision is not mentioned at all
in the Commission's approval decisions. Also, the amounts
approved by the Commission for contract losses would be
lower than the actual contract losses incurred. The applicants
claim as well that the Commission included in its assessment of
the aid received assets that should be considered not as aid,
including assets for which Kværner had paid a purchase price.
Furthermore, the applicants claim that the Commission ignored
that the amount of aid approved, was only partially received.

C 106/34

EN

Official Journal of the European Union

30.4.2005

The applicants also submit a violation of the principle of legal
certainty. According to the applicants, the Commission did not
act in a timely manner while it had all relevant information at
its disposal. The applicants submit that the Commission only
started its inquiries in 1999, even though it was, according to
the applicants,
facts in early
fully informed of all relevant
1996. The procedure opened in February 2000 would also
have been extended to new elements that were never investi-
gated before, and for which the approval decisions did not
provide a legal basis.

Finally, as a subsidiary ground, the applicants submit that the
Commission failed to take all restructuring costs into account
when determining the amount to be recovered. According to
the applicants, much more was spent on the restructuring than
the amount of aid received for that purpose.

Action brought on 11 February 2005 by European
the European Food Safety
Dynamics S.A.

against

Authority

(Case T-69/05)

(2005/C 106/70)

(Language of the case: English)

An action against the European Food Safety Authority was
brought before the Court of First Instance of the European
Communities on 11 February 2005 by European Dynamics
S.A., established in Athens (Greece), represented by N. Koro-
giannakis, lawyer.

The applicant claims that the Court should:

— annul the decision of EFSA, to evaluate the applicant's bid
as not successful and award the contract to the successful
contractor as well as all other later decisions of EFSA
related to the above;

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

Pleas in law and main arguments

The applicant company filed a bid in response to EFSA's call
for tenders EFSA/IT/00012 (1) for the software and services for
establishing an Extranet between the Members States' national
agencies, EFSA and the European Commission. By the
contested decision the applicant's bid was rejected and the
contract awarded to another bidder.

In support of its application to annul the contested decisions
the applicant contends that the defendant violated the Financial
Regulation (2) as well as Article 17(1) of Directive 92/50 (3) by
using evaluation criteria, that were not well specified in the call
for tenders. According to the applicant, by accepting without
any further processing and cross-checking the opinion of offi-
cers of the tenderer's clients, EFSA attributed part of its evalua-
tion rights to third parties. The applicant further argues that
under Directive 92/50 the satisfaction of a bidder's clients
cannot be taken into account in order to exclude the bidder
but can only be used as an ‘award criterion’.

The applicant also claims that the defendant committed mani-
fest errors of appreciation in the evaluation of the bid it had
submitted. The applicant contests certain statements contained
in the report of the Evaluation Committee, regarding the fact
that one of the applicant's clients had neither purchased nor
used the product offered by the applicant and the fact that
another Community institution was not satisfied with the appli-
cant's product. The applicant also considers,
in the same
context, that the method used by EFSA during the evaluation
procedure, consisting in simple telephone calls without any
official requests nor cross-checks of the information received,
was inadequate and in itself suffices in order to establish a
manifest error of assessment.

finally submits that

failed to
The applicant
provide adequate reasons for its decision, in violation of Article
253 EC.

the defendant

(1) OJ 2004/S 153-132262.
(2) 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.

(3) 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.