Case T-258/06: Action brought on 12 September 2006 — Germany v Commission
Date: 2006-12-02
Institutions: Court of First Instance
Subjects: European Commission, Germany, action for annulment (EU), application of EU law, award of contract, competition, public contract

C 294/52

EN

Official Journal of the European Union

2.12.2006

Action brought on 12 September 2006 — Germany v
Commission

Action brought on 20 September 2006 — Torres v OHIM
— Navisa Industrial Vinícola Española (MANSO DE
VELASCO)

(Case T-258/06)

(2006/C 294/107)

Language of the case: German

(Case T-259/06)

(2006/C 294/108)

Language in which the application was lodged: Spanish

Parties

Applicant: Federal Republic of Germany (represented by: M.
Lumma and C. Schulze-Bahr)

Parties

Defendant: Commission of the European Communities

Applicant: Miguel Torres SA (Barcelona, Spain) (represented by:
E. Armijo Chávarri and A. Castán Pérez-Gómez, lawyers)

Form of order sought

— declare null and void the Commission's

interpretative
communication of 23 June 2006 on the Community law
applicable to contract awards not or not fully subject to the
provisions of the public procurement directives; and

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

Other party to the proceedings before the Board of Appeal of OHIM:
Navisa Industrial Vinícola Española SA

— order the defendant to pay the costs.

Form of order sought

Pleas in law and main arguments

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

29 June 2006 in Case R-865/2005-1;

The applicant takes issue with the Commission's interpretative
communication on the Community law applicable to contract
awards not or not fully subject to the provisions of the public
procurement directives, which was placed on the Commission's
internet website on 24 July 2006 and published in the Official
Journal on 1 August 2006 (OJ 2006 C 179, p. 2).

It argues

in this connection that

the applicant submits that

the
As grounds for its action,
Commission was not competent to issue the contested commu-
nication.
the contested
communication contains new rules on tendering which go
beyond the obligations arising under existing Community law.
These new rules will have legally binding effects for the
Member States. The EC Treaty, however, contains no authorisa-
tion which would enable the defendant to adopt such rules.
The present case therefore, in the applicant's view, essentially
involves an instance of de facto legislation.

The applicant goes on to contend that, by establishing manda-
tory rules, the defendant has upset the institutional balance
existing between the Council, the European Parliament and the
Commission.

In conclusion the applicant submits that, even if the Commis-
sion were competent to issue the contested communication,
the latter would still have to be declared null and void as the
principle of legal certainty has been infringed. The defendant
ought to have invoked the appropriate legal basis and made
express reference to this in the legal measure in question. The
Commission thus also breached the duty to state reasons laid
down in Article 253 EC.

— order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Miguel Torres SA

Community trade mark concerned: Word mark MANSO DE
VELASCO for goods in Class 33 — application No 2261527

Proprietor of the mark or sign cited in the opposition proceedings:
Navisa Industrial Vinícola Española SA

Mark or sign cited in opposition: Spanish word mark VELASCO
for goods in Class 33

Decision of
refusal of the application

the Opposition Division: Opposition upheld and

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC)
No 40/94 (1) given that there is no likelihood of confusion
between the conflicting signs making them incompatible.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ L 11 of 14.1.1994, p. 1).