Case T-232/06: Action brought on 28 August 2006 — Eyropaïki Dynamiki v Commission
Date: 2006-08-28
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), award of contract, computer system, customs, invitation to tender, provision of services, tendering

C 261/22

EN

Official Journal of the European Union

28.10.2006

Form of order sought

— Annul Commission Decision C(2006) final of 22 June 2006
concerning the ad hoc measures implemented by the Neth-
erlands for the purpose of financing public broadcasters in
the Netherlands in relation to the State aid case No
C 2/2004 (ex NN 170/2003), with the exception of Article
1(3) thereof;

— Order the Commission to pay the costs.

applicant, however, the Commission thereby based itself on the
presumption that this amount was still retained by the NOS as
a reserve, whereas in fact it had already been spent to a large
degree, in accordance with the applicable conditions.

The Commission also established that the amount in reserves
which the separate broadcasters had transferred to the NOS
had to be recovered in full. The applicant submits that, in so
doing, the Commission, without giving reasons, departed from
its established conduct of allowing overcompensation of up to
10 %.

Pleas in law and main arguments

The applicant first alleges a breach of Article 88(2) EC and of
the rights of the defence by reason of the fact that, in its deci-
sion, the Commission has substantially departed from the deci-
sion of 3 February 2004 (1) by which it initiated the formal
investigation. The applicant goes on to submit that the subject-
matter of the investigation and the method of calculation for
determining the excess compensation have been altered.

Secondly, the applicant claims that there has been a breach of
Article 88(1),
(2) and (3) EC, of Article 1(b) of Regulation
No 659/1999 (2) and Article 253 EC on the ground that the
Commission incorrectly construed and applied the concepts of
new aid and existing aid.

The applicant submits that the Commission erred in classifying
payments from specific funds and reserves as new aid. By so
doing, it argues, the Commission failed to take account of the
fact that such payments, in the same way as ordinary payments
to public broadcasters, constitute part of media budget and do
not amount to additional public funds. The applicant argues
that the only difference, namely that these payments are made
available for specific purposes, does not amount to a reason for
distinguishing these payments from the rest of public finan-
cing.

The applicant goes on to submit that the Commission incor-
rectly applies the notion of existing aid by classifying as new
aid to the NOS the repayment of part of the reserves of the
separate public regional broadcasters to a coordinating body,
the NOS. According to the applicant, the reserves in question
arose from the annual financing, which constitutes existing aid,
and did not lose their character as existing aid simply by
reason of the transfer to the NOS.

By way of alternative submission, the applicant alleges a breach
of Article 86(2) EC, a manifest misappraisal of the facts, and a
breach of Article 253 EC by reason of the manner in which the
Commission calculated the overcompensation of
the public
broadcasters.

According to the applicant, the Commission was wrong to
decide that the financing failed to comply with the principle of
proportionality. The applicant states that the Commission had
initially established that the financing did not lead to distortions
of competition on commercial markets. There can for that
reason be no question, the applicant submits, of overcompensa-
tion and no reimbursement is therefore necessary.

The Commission also fixed the amount to be claimed back
from the NOS's Broadcasting Reserve Fund. According to the

(1) OJ 2004 C 61, p. 8.
(2) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article 93 of the EC
Treaty (OJ L 83, p. 1).

Action brought on 28 August 2006 — Eyropaïki Dynamiki
v Commission

(Case T-232/06)

(2006/C 261/42)

Language of the case: English

Parties

Applicant: Eyropaïki Dynamiki — Proigmena Systimata Tilepi-
koinonion Pliroforikis kai Tilematikis AE (Athens, Greece)
(represented by: N. Korogiannakis and N. Keramidas, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annulment of the decision of DG TAXUD to evaluate the
applicant's bid as not successful and award the contract to
the successful contractor;

— order DG TAXUD to pay the applicant's legal and other
costs and expenses incurred in connection with this appli-
cation, even if the current application is rejected;

— order DG TAXUD to pay applicant's damages suffered on

account of the tendering procedure in question.

Pleas in law and main arguments

By means of its application, the applicant seeks annulment of
DG TAXUD's decision of 19 June 2006, rejecting its bid filed
in response to the open Call for Tenders TAXUD/2005/AO-
001 for specification, development, maintenance and support
of customs IT services relating to projects of the DG-TAXUD
‘CUST-DEV’ (OJ 2005/S 117-115222) and awarding the same
Call for Tender to another bidder.

28.10.2006

EN

Official Journal of the European Union

C 261/23

In support of its claims the applicant puts forward that, in the
framework of the said tendering procedure, DG TAXUD failed
to respect the procedural requirements set out in the Financial
resulting in
Implementing Rules,
Regulation and its
unequal treatment of tenderers and violation of principles of
transparency
administration. Moreover, DG
TAXUD's decision allegedly contained manifest errors of assess-
ment and according to the applicant, by far exceeded the
discretion that European Institutions dispose of when evalu-
ating tenders.

sound

thus

and

Action brought on 26 August 2006 — Casa Editorial El
Tiempo v OHIM –Instituto Nacional de Meteorología (EL
TIEMPO)

(Case T-233/06)

(2006/C 261/43)

Language in which the application was lodged: Spanish

Class 38 (No 2217494,
and TELETIEMPO INSTITUTO
NACIONAL DE METEOROLOGÍA for services in Classes 35
(No 2217493) and 41 (No 2217492)

Decision of
refusal of the application for a Community trade mark

the Opposition Division: Opposition upheld and

Decision of the Board of Appeal: Rejection of the opposition in
respect of the following services: ‘advertising; business manage-
ment; business administration; office functions’ (Class 35) and
‘entertainment; sporting and cultural activities’ (Class 41)

Pleas in law: Misapplication of Article 8(1)(b) of Regulation (EC)
No 40/94 on the Community trade mark

Action brought on 4 September 2006 — Torresan v
OHIM — Klosterbrauerei Weissenohe (CANNABIS)

(Case T-234/06)

(2006/C 261/44)

Parties

Language in which the application was lodged: Italian

Applicant: Casa Editorial El Tiempo SA (Bogotá, Colombia)
(represented by: A. Fernández Lerroux, lawyer)

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal of OHIM:
Instituto Nacional de Meteorología

Form of order sought

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

of 22 June 2006 in Case R-760/2005-4;

— order the defendant and the other party before the Board of

Appeal to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Casa Editorial El Tiempo
SA

Community trade mark concerned: Word mark EL TIEMPO (appli-
cation No 1685056) for goods and services in Classes 16, 35,
38 and 41

Proprietor of the mark or sign cited in the opposition proceedings:
Instituto Nacional de Meteorología

sign cited in opposition: National word marks EL
Mark or
TIEMPO for publications (unregistered, but well-known), TELE-
TIEMPO for goods in Class 16 (No 1902923) and services in

Parties

Applicant: Giampietro Torresan (Schonenfels, Switzerland)
(represented by: Gianluca Recher, lawyer)

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs) (OHIM)

Other party to the proceedings before the Board of Appeal of OHIM:
Klosterbrauerei Weissenohe GmbH & Co. KG

Form of order sought

— annul the decision of the Second Board of Appeal of 29
June 2006 in proceedings R 517/2005-2, notified by fax of
5 July 2006, and confirm the registration of the Com-
munity trade mark CANNABIS for Classes 32 and 33;

— in any case, order the costs of all of the proceedings to be
including those of the previous two appeals

reimbursed,
before OHIM.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of
invalidity has been sought: Word mark ‘CANNABIS’ (application
for goods and services in
for registration No 1.073.349),
Classes 32, 33 and 42.

Proprietor of the Community trade mark: The applicant.