Case T-125/06: Action brought on  3 May 2006  — Centro Studi A. Manieri v Council of the European Union
Date: 2006-06-03
Institutions: Court of First Instance
Subjects: Council of the European Union, action for annulment (EU), administrative transparency, award of contract, child care, invitation to tender, management, restriction on competition

3.6.2006

EN

Official Journal of the European Union

C 131/49

Pleas in law and main arguments

— Assess the damage suffered by the applicant on an equitable

Community trade mark concerned: The word mark ‘ULTIMATE
FIGHTING CHAMPIONSHIP’ for goods and services in classes
9, 16, 25, 28 and 41 — application No 2 789 568

Decision of the examiner: Refusal of the application in respect of
all the goods and services applied for

Decision of the Board of Appeal: Annulment of the examiners
decision, rejection of the trade mark applied for pursuant to
Article 7(1)(b) and (c) of Council Regulation No 40/94 and
remission of the case to the examiner for further examination
pursuant to Article 7(3) of the Regulation

Pleas in law: The Board of Appeal erred in equating the words
ULTIMATE FIGHTING to the identification of the name of a
particular sport and in finding that their meaning was clear and
unequivocal. The Board of Appeal therefore erred in holding
the trade mark applied for descriptive and non-distinctive.

Action brought on 3 May 2006 — Centro Studi A. Manieri
v Council of the European Union

(Case T-125/06)

(2006/C 131/90)

Language of the case: Italian

Parties

Applicant(s): Centro Studi A. Manieri (Rome, Italy) (represented
by: Carlo Forte, Mario Forte and Giannicola Forte, lawyers)

Defendant(s): Council of the European Union

Form of order sought

— Annul the decision of the General Secretariat of the Council
of the European Union of 16 January 2006 to withdraw
the restricted invitation to tender UCA-459/03 for full
crèche management and, at the same time to accept the
proposal of the Office for infrastructure and logistics (OIB)
of the European Commission for the supply of the same
services;

basis:

— Order the Council to pay the costs.

Pleas in law and main arguments

This action has been brought against the decision of the Secre-
tary-General of the defendant to withdraw the invitation to
tender launched in the autumn of 2003 by contract notice
2003/S 209-187862 by restricted procedure for
the full
management of a crèche. The reason for the decision is alleged
to be the acceptance of a proposal by the Office for infrastruc-
the Commission regarding the
ture and logistics (OIB) of
management of the crèche in question. That proposal was
judged to be much more advantageous than the applicant's
tender, particularly as
the contractual conditions
offered to the staff, the economies of scale and the optimisation
of the available resources.

regards

In support of its claims the applicant relies on pleas of:

— Breach of the principles of transparency and equal treat-
ment,
in so far as the contested measure, a decision to
bring the service which was the subject of the procedure
under internal management, was adopted without being
advertised or opened up to competition.

— Breach of Article 86(1) EC in that it is inconceivable that
there should be a system which requires Member States not
to maintain in force a national system which allows the
award of contracts for public services without competition
while the Community institutions are allowed to conduct
themselves in such a manner.

— Misapplication of the provisions cited as the legal basis of
the contested decision: section 4 of the specification and
Article 101 of the Financial Regulation,
in so far as the
withdrawal of the invitation cited by the Council was not
intended to recommence the procedure.

— Breach of the obligation to state reasons and error of assess-
ment of the facts, as regards the correctness of the criteria
supporting the choice of the proposal of the OIB.

It

follows that

— Breach of Articles 43 and 49 EC. It is argued on this point
that the OIB is not a department of the Council and it does
not have any control over it.
is not
possible in the circumstances of this case to rely on the
case-law according to which the application of the public
procurement procedures is precluded if the control exer-
cised over the concessionaire by the concession-granting
public authority is similar to that which the authority exer-
cises over its own departments and if, at the same time,
that entity carries out the essential part of its activities with
the controlling authority.

it