Case T-271/06: Action brought on 2 October 2006 — Microsoft v Commission
Date: 2006-12-02
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), dominant position, information technology industry, periodic penalty payment, software

C 294/56

EN

Official Journal of the European Union

2.12.2006

Form of order sought

— Annul the decision of the Grand Board of Appeal of the
(Trade
and Designs) of 10 July 2006 in case No

Office of Harmonisation in the Internal Market
Marks
R 856/2004-G; and

— order that the costs of the proceedings be borne by the

penalty payment
imposed on Microsoft Corporation by
Decision C(2005)4420 final and amending that decision as
regards the amount;

— in the alternative, annulment or reduction of the periodic

penalty payment imposed; and

defendant.

— order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a
invalidity: The figurative mark ‘LEGO brick’ for
declaration of
products in class 28 claiming the ‘colour red’ — Community
Trade mark No 107 029

Proprietor of the Community trade mark: The applicant

Party requesting the declaration of invalidity of the Community trade
mark: Mega Brands Inc.

Decision of the Cancellation Division: Declaration of invalidity of
the Community trade mark

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The applicant advances a single plea in law in
support of its application. Precisely, the applicant contends that
the contested decision violates Article 7(1)(e)(ii) CTMR of
Council Regulation (EC) No 40/94 in so far as it allegedly
misinterprets the said provision as well as its rationale and, in
addition, to the extent that it applies it to something that is not
the subject of the trade mark protection granted by the registra-
tion at issue.

Action brought on 2 October 2006 — Microsoft v
Commission

(Case T-271/06)

(2006/C 294/115)

Language of the case: English

Parties

Applicant: Microsoft
J-F.
Inc (Seattle, USA)
Bellis, G. Berrisch, lawyers, I. S. Forrester, QC and D. W. Hull,
Solicitor )

(represented by:

Defendant: Commission of the European Communities

Form of order sought

— Annulment of Commission Decision C(2006)3143 final of
12 July 2006 fixing the definitive amount of the periodic

Pleas in law and main arguments

By a decision of 10 November 2005 (the ‘Article 24(1) deci-
sion’) adopted pursuant to article 24(1) of Regulation 1/2003,
the Commission imposed a periodic penalty payment in the
event the applicant failed to fulfil
its obligation to provide
Interoperability Information pursuant to Decision C(2004)900
final of 24 March 2004 (the ‘2004 decision’). The contested
Decision C(2006)3143 of 12 July 2006 fixed the definitive
amount of the periodic penalty payment for the period of 16
December 2005 through 20 June 2006 at 280.5 million EUR.

By means of its application, the applicant seeks annulment of
the contested decision on the basis of the following grounds:

Firstly, the applicant claims that the Commission violated its
duty to give clear information and precise instructions as to
what it required for compliance with the 2004 decision. The
applicant deemed such information and instructions to be
necessary allowing it to opt for the expected means to satisfy
the obligation to provide Interoperability Information. In this
respect,
the Commission
omitted to include the relevant instructions in the 2004 deci-
sion as well as in the Article 24(1) decision itself, whether prior
to adoption of the latter, nor until several months had elapsed
after such decision was taken.

further claims that

the applicant

required under

the 2004 decision. Precisely,

Secondly, the applicant submits that the Commission failed to
the applicant did not
prove to the requisite standard that
comply with its obligation to provide Interoperability Informa-
tion as
the
Commission allegedly failed to put forward clear and convin-
cing reasoning supported by sufficiently precise and coherent
evidence that (1) the technical documentation that the appli-
cant made available on 15 December 2005 did not comply
with the requirements of the 2004 decision; and (2) none of
the subsequent steps that the applicant undertook from 16
December 2005 to June 2006 were sufficient to ensure compli-
ance. Specifically and according to the applicant, the Commis-
sion thus failed to objectively evaluate the evidence before it
and applied the wrong standard in evaluating the technical
documentation.

The applicant advances as a third ground of annulment the fact
that the Commission denied it the right to be heard before
adopting the contested decision, the reference period for the
imposition of the periodic penalty payment being 16 December
2005 through 20 June 2006 while the Statement of Objections
was issued on 21 December 2005, not covering a single day of
the reference period.

2.12.2006

EN

Official Journal of the European Union

C 294/57

Fourthly, the applicant contends that the Commission violated
its rights of defence by denying it
full access to the file,
including communications between the Commission, on the
one hand, and its experts, on the other.

Finally, the applicant suggests that the amount of the periodic
penalty payment
is excessive and disproportionate as the
Commission failed to take into account the complexity of the
compliance obligation, while it completely disregarded the
applicant's substantial good faith efforts to comply with the
Commission's previous decisions.

Moreover, the applicant submits that the contracting authority's
decision contains evident errors of assessment in the frame-
work of the evaluation of its offer, exceeding, thus, the discre-
tion that European Institutions dispose in procurement proce-
dures.

Action brought on 11 September 2006 — ISD Polska and
Industrial Union of Donbass v Commission

Action brought on 29 September 2006 — Evropaïki Dyna-
miki v Court of Justice

(Case T-272/06)

(2006/C 294/116)

Language of the case: English

Parties

(Case T-273/06)

(2006/C 294/117)

Language of the case: French

Parties

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

Defendant: Court of Justice of the European Communities

ISD Polska sp. z.o.o.

(Częstochowa, Poland) and
Applicants:
Industrial Union of Donbass Corp. (Donetsk, Ukraine) (repre-
sented by: C. Rapin and E. Van den Haute, lawyers)

Defendant: Commission of the European Communities

Form of order sought

Form of order sought

— Annulment of the decision of the Court of Justice to eval-
uate the applicant's bid as not successful and award the
contract to the successful contractor;

— order the Court of Justice 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

By means of its application, the applicant seeks annulment of
the decision of the Court of Justice of 20 July 2006, rejecting
its bid filed in response to the open Call for Tenders AM CJ
13/04 for
the maintenance, development and support of
computer applications (OJ 2005/S 127-125162 & 2005/S 171-
169521) and awarding the same Call for Tender to another
bidder.

— declare this action admissible;

— annul Article 3 of the Commission decision of 5 July 2005
concerning the aid granted by Poland to Huta Częstochowa
SA (notified under C(2005) 1962);

— in the alternative, declare that on the date of this action
there is no obligation on Poland to recover the aid and
interest referred to in Article 3 of the decision and therefore
that the amounts of that aid and interest is not payable;

— in the further alternative, annul the second subparagraph of
Article 3(2) of the decision and refer the question of the
interest to the Commission for a new decision in accord-
ance with Annex A to this application, or with such other
consideration as the Court may indicate in the grounds of
the judgment;

The applicant claims that the contested decision was taken in
violation of the Financial Regulation (EC) No 1605/2002 (OJ L
its Implementing Rules and Directive
248, 16/09/02, p. 1),
2004/18/EC, through an alleged misinterpretation of the selec-
tion criteria, violation of the principles of transparency and
equal treatment of the participants.

— in any event, order the Commission to pay all of the costs;

— if the Court should decide that there is no need to adjudi-
cate, order the Commission to pay the costs pursuant to
the combined provisions of Article 87(6) and Article 90(a)
of the Rules of Procedure of the Court of First Instance.