Case T-278/06: Action brought on 6 October 2006 — United Kingdom v Commission
Date: 2006-12-02
Institutions: Court of First Instance
Subjects: EAGGF Guarantee Section, EU financing, European Commission, United Kingdom, action for annulment (EU), butter, concentrated product, confectionery product

C 294/60

EN

Official Journal of the European Union

2.12.2006

Thirdly, the applicant invokes that the Commission infringed
essential procedural requirements by failing to analyse properly
the evidence in its file and failing to provide the applicant with
access to all relevant documents, thereby infringing the appli-
cant's rights of defence.

Decision of the Board of Appeal: Refusal of the application for
restitutio in integrum and declaration that the appeal was deemed
not to have been filed

Pleas in law: Misinterpretation of Article 78(5) of Council Regu-
lation No 40/94 in finding that an application for restitutio in
integrum cannot be made if the subject matter of the said appli-
cation concerns the failure to comply with the time limit set
out in Article 59 of the regulation.

Action brought on 9 October 2006 — Omnicare v OHIM
— Yamanouchi Pharma (OMNICARE)

(Case T-277/06)

(2006/C 294/120)

Language in which the application was lodged: English

Parties

Applicant: Omnicare Inc. (Covington, USA) (represented by: M.
Edenborough, Barrister)

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

Other party before the Board of Appeal: Yamanouchi Pharma
GmbH (Heidelberg, Germany)

Form of order sought

— The appeal by the appellant to the Court of First Instance

be allowed;

Action brought on 6 October 2006 — United Kingdom v
Commission

(Case T-278/06)

(2006/C 294/121)

Language of the case: English

Parties

Applicant: United Kingdom of Great Britain and Northern
Ireland (represented by: E. O'Neill, acting as agent, and H.
Mercer, Barrister)

Defendant: Commission of the European Communities

— the decision of

the Second Board of Appeal case No

R0446/2006-2 be annulled in its entirety;

Form of order sought

— the application for restitutio in integrum be remitted to the

Board of Appeal for reconsideration; and

— the Office pays to the appellant the costs incurred by it in
connection with this appeal before the Court of First
Instance.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: Word mark ‘OMNICARE’ for
goods and services in classes 16 and 42 — application No
284 067

Proprietor of the mark or sign cited in the opposition proceedings:
Yamanouchi Pharma GmbH

Mark or sign cited: National figurative mark ‘OMNICARE’ for
services in classes 35, 41 and 42

Decision of
entirety

the Opposition Division: Opposition upheld in its

— Article 1 of Commission Decision 2006/554/EC on the
clearance of accounts presented by Member States in
respect of expenditure of the Guarantee Section of the
European Agricultural Guidance and Guarantee Fund be
annulled in so far as it excludes from Community financing
United Kingdom expenditure for the years 2001-2004 in
the sum of £1,351,441.25 in the audit field ‘Butterfats in
food processing’ on the grounds of ‘Insufficient quantity
controls on manufactured quantities’;

— the Commission be ordered to pay the costs incurred by

the United Kingdom.

Pleas in law and main arguments

The applicant seeks the partial annulment of the Commission's
Decision 2006/554/EC of 27 July 2006 excluding from Com-
munity financing certain expenditure incurred by the Member
the European Agri-
States under the Guarantee Section of
cultural Guidance and Guarantee Fund (EAGGF) (1) and in par-
ticular the part concerning the use of butterfats in food proces-
sing in the United Kingdom.

2.12.2006

EN

Official Journal of the European Union

C 294/61

The dispute concerns the control measures taken by the appli-
cant under Article 23 of Commission Regulation No
2571/97 (2)
(‘the Commission regulation’) which prescribes
measures to be taken by Member States inter alia in respect of
the manufacture and use of concentrated butter for which
subsidy is available when the concentrated butter is used for
the manufacture of specified pastries and cakes.

Article 23(2) of the Commission regulation provides for an ‘on-
the-spot’ check on manufacturers of concentrated butter
‘during the manufacture of concentrated butter’ so that ‘each
tender award is checked […] at least once’.

interpretation of

The Commission finds that the applicant has failed to carry out
key controls in that, as a matter of
the
Commission regulation, the applicant is under an obligation to
verify physically the quantities in one batch of concentrated
butter per tender after manufacturing has taken place. The
applicant alleges that this in effect amounts to ensure that each
tender award is checked at least twice. The applicant claims
that the Commission relies on a concept which is not in the
Commission regulation of a ‘physical’ check on quantity.

The applicant invokes two pleas in law:

a) The Commission committed an error of law in that the
contested decision was unlawful under
sub-
paragraph of Article 7(4) of Council Regulation No
1258/1999 (3) (the ‘Council regulation’) on the financing of
the common agricultural policy as there was no basis for
concluding that the relevant expenditure was not effected in
compliance with the Community rules contained in Article
23(2) of the Commission regulation; and

the first

b) the Commission committed an error of law in that the
determination of the amount excluded was in breach of the
fourth subparagraph of Article 7(4) of the Council regu-
lation.

(1) OJ 2006 L 218, p. 12.
(2) Commission Regulation (EC) No 2571/97 of 15 December 1997 on
the sale of butter at reduced prices and the granting of aid for
cream, butter and concentrated butter for use in the manufacture of
pastry products, ice-cream and other foodstuffs (OJ 1997 L 350, p.
3).

(3) Council Regulation (EC) No 1258/1999 of 17 May 1999 on the
financing of the common agricultural policy (OJ 1999 L 160, p.
103).

Action brought on 9 October 2006 — Evropaïki Dynamiki
v ECB

(Case T-279/06)

(2006/C 294/122)

Language of the case: English

Parties

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

Defendant: European Central Bank

Form of order sought

— Annul the decision of the ECB to evaluate the applicant's
to the

bid as not successful and award the contract
successful contractor;

— order ECB 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

for a negotiated tender for the provision of

The applicant submitted a bid in response to a call by the
defendant
IT
consultancy and IT development services to the European
Central Bank (ECB) (OJ 2005/S 137-135354). The applicant
contests the decision to reject its bid and to commence contrac-
tual negotiations with other bidders.

In support of its application, the applicant submits that the
ECB unlawfully did not disclose the weighting of criteria and
sub-criteria in the tender notice and that the ECB used vague
terms to evaluate negatively the applicant's bid and thereby
violated the principles of transparency and sound administra-
tion and failed to state reasons. Furthermore, the applicant
claims that the ECB made several errors of appreciation under
the evaluation of the applicant's offer. Finally the applicant
alleges that the ECB introduced a specific term in the call for
tender, which favoured German established companies, and
thereby violated among others Articles 12 EC and 49 EC.