Case T-5/07: Action brought on 5 January 2007 — Belgium v Commission
Date: 2007-03-10
Institutions: Court of First Instance
Subjects: Belgium, European Commission, European Social Fund, action for annulment (EU), claim, redemption

C 56/32

EN

Official Journal of the European Union

10.3.2007

— when the Court considers the second of

the pleas
alleged, it must annul the decision in part, reducing the
amount of the corrections by 267 746 EUR, or, in the
alternative and because of an error of calculation, by
90 186 EUR

— when the Court considers the third of the pleas alleged,
it must annul the decision in part, reducing the amount
of the corrections by 76,369 EUR,

— when the Court considers the fourth of the pleas alleged,
it must annul the decision in part, reducing the amount
of the corrections by 3 264 849 EUR.

— Order the Commission to pay the costs.

Pleas in law and main arguments

The present action is directed at Commission Decision C(2006)
in that it reduces the assistance
5103 of 20 October 2006,
from the Cohesion Fund to five projects carried out in the
Comunidad Autónoma de Andalucia, and namely:

— N. 2000.ES.16.C.PE.012 (Measures to be undertaken for the
management of waste by the Comunidad Autónoma de
Andalucia).

— N. 2000.ES.16.C.PE.066 (Clearance and treatment measures

in the Guadalquivir basin).

— N. 2001.ES.16.C.PE.004 (Clerance and treatment measures

in the Southern basin: Phase I).

— N. 2000.ES-16.C.PE.025 (Enlargement of municipal solid
in the Comunidad

facilities

(MSW)

waste
treatment
Autónoma de Andalucia).

detected in the direct award of two service contracts. As
part of that plea, in the alternative, error of calculation.

the ‘criterion of experience’ as one of

— Breach of the directives on public contracts regarding the
inclusion of
the
criteria for the contract award. It is submitted in this regard
that, while that criterion is not expressly provided for in the
applicable rules, Community case-law allows for this possibi-
lity, and the use of that criterion can in no way constitute a
grave and manifest infringement of the Community rules,
or, in any event, can only amount to an excusable error of
law on account of lack of clarity of the applicable rule.

— Lack of grave and manifest breach, and, therefore, of a suffi-
ciently serious breach of Community law in relation to the
irregularities stemming from the failure to publish certain
contracts.

(1) Council Directive 92/50/EEC of 18 June 1992 relating to the coordi-
nation of procedures for the award of public service contracts (OJ L
209, 24.7.1992, p. 1).

Action brought on 5 January 2007 — Belgium v Commis-
sion

(Case T-5/07)

(2007/C 56/63)

Language of the case: French

— N. 2000.ES.16.C.PE.138 (Measures to be undertaken for the
management of waste by the Comunidad Autónoma de
Andalucia).

Parties

In the contested decision, whose primary purpose was to
examine project 012, the Commission applies a correction of
EUR 4 735 284, on the basis of considerations relating to the
sufficiency of controls in respect of the eligibility of expenditure
and observance of certain rules on tendering procedures (direct
award of two contracts, use of experience as a criterion of the
award and alleged irregularities in the publication of certain
contracts).

Applicant: Kingdom of Belgium (represented by: L. Van den
Broeck, Agent, J.-P. Buyle and C. Steyaert, avocats)

Defendant: Commission of the European Communities

In support of its claims, the applicant alleges:

Forms of order sought

— Infringement of the principles of

legitimate expectations,
legal certainty and proportionality in relation to the elig-
ibility of certain expenditure inasmuch as the impugned
measure was adopted even before expiry of the prescribed
period requested in order to disqualify non-eligible expendi-
ture and replace it with other eligible expenditure.

— Incorrect interpretation of Article 11(3)(b) and (e) of Direc-
in relation to the alleged irregularities

tive 92/50/EEC (1)

The applicant claims that the Court should:

— declare that the application is admissible and well founded;

— annul the Commission's decision of 18 October 2006 in so
far as that decision considers that the ‘old ESF debts’ —
which the Kingdom of Belgium paid voluntarily, but without
prejudice, on 21 December 2004 — are not subject to a
limitation period;

10.3.2007

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Official Journal of the European Union

C 56/33

— in consequence, rule that those debts are subject to a limita-
to Article 3(1) of Regulation
tion period pursuant
No 2988/95/EC, Euratom and,
in consequence, order the
European Commission to repay the Kingdom of Belgium the
sum of EUR 63 117 760,
interest
applied from 21 December 2004 and calculated at the ECB
base rate increased by three and a half points;

together with default

— in the alternative, annul

the Commission's decision of
18 October 2006, in so far as that decision considers that
non-payment of the old ESF debts at issue generates interest
and,
in consequence, order the European Commission to
repay the applicant the interest paid by the latter on the
debts at issue, that is to say, the sum of EUR 37 772 499,
together with default interest applied from 21 December
2004 and calculated at the ECB base rate increased by three
and a half points;

subject to a limitation period, and that there was no legal basis
for the application of default interest. Nevertheless, in order to
stop interest from running, Belgium paid a sum representing the
balance of the amounts due by way of ESF debts that had not
been offset. At the same time, Belgium made it clear that it was
not abandoning the arguments put forward in its correspond-
ence and that it reserved the right to claim reimbursement of
those sums in so far as its arguments were well founded. The
Commission replied by letter of 19 January 2005 in which it
stated its views on Belgium's contentions. That letter was the
subject of an application for annulment brought by the
Kingdom of Belgium before the Court of First Instance. By order
of 2 May 2006, the Court of First Instance dismissed the appli-
cation as inadmissible on the ground that the letter at issue was
the purposes of
not
Article 230 EC. (3)

an act open to challenge

for

— in the further alternative, annul the Commission's decision
of 18 October 2006 as regards the rate of
the interest
claimed and, accordingly, rule that that interest rate changes
according to the rate of interest applied by the ECB to its
principal refinancing operations, as published in the Official
Journal and, in consequence, order the Commission to repay
the applicant the excess interest paid by it on the debts at
issue,
from
default
21 December 2004 and calculated at the ECB base rate
increased by three and a half points;

together with

interest

applied

— in any case, order the Commission to pay the costs of these

proceedings.

Pleas in law and main arguments

By the present application, Belgium seeks annulment of the
Commission's decision, set out in the letter of 18 October
2006, refusing to repay Belgium a sum that it had paid in settle-
ment of old debts owed to the European Social Fund, which
Belgium claims should be reimbursed on the ground that those
debts are subject to a limitation period and, in the alternative,
on the ground that there is no legal basis for requiring the
payment of interest.

During the period from 1987 to 1992, the Commission asked
Belgium, by decisions adopted on the basis of Regulation
No 2950/83/EEC (1) and Decision 83/673/EEC (2),
to repay
sums that had been granted in the form of assistance to various
Belgian bodies (promoters) and that they had not used. Belgium
passed on the debit notes issued by the Commission to the
promoters concerned. Although some of the promoters reim-
bursed the Commission directly, others entered into correspond-
ence with the Commission concerning the lawfulness of the
requests for reimbursement. At the initiative of the Commission,
fresh discussions were opened in 2003. In 2004, the Commis-
sion took steps to offset the amounts owed by way of the old
ESF debts at issue (debit notes issued between 15 January 1987
and 31 December 1991) — plus default interest applied from
the date of issue of the debit notes — using Belgium's debts to
the Commission in the framework of management of the ESF
funds. Belgium contested that offsetting, as well as the interest
applied by the Commission, on the grounds that the debt was

On 29 June 2006, Belgium addressed another letter to the
Commission requesting reimbursement of the sum representing
the balance of the amounts due by way of ESF debts that had
not been offset — which it had paid in order to stop interest
from running — on the basis of the arguments relied upon
beforehand relating to the limitation period for the debt, as well
as those relating to the lack of a legal basis for requiring interest.
By letter of 18 October 2006 the Commission stated its refusal
to effect the reimbursement sought. That letter is the contested
act for the purposes of the present proceedings.

In support of the main forms of order sought, Belgium main-
tains that the only European legislation that fully addresses the
recovery by the Commission of unused monies in accordance
with the materially relevant provisions of European law is Regu-
lation No 2988/95/EC, Euratom (4). According to Belgium,
Article 3 of that Regulation, which lays down the limitation
periods for proceedings, must be applied in the present case.
Belgium also argues that if the Court of First Instance is obliged
to find that Belgium cannot challenge the Commission on the
basis of the limitation periods provided for in Article 3 of Regu-
lation No 2988/95/EC, Euratom,
it would be appropriate to
refer to Article 2(4) of that Regulation, and to apply the Belgian
law governing the length of
limitation periods for ‘personal’
actions.

that

In support of the forms of order sought in the alternative,
relating to the inappropriateness of
the legal basis for the
Commission's claim for default interest from Belgium, the latter
submits
the Commission is committing an error by
applying Article 86(2)(b) of Regulation No 2342/2002/EC,
Euratom laying down the detailed rules for implementation of
the Financial Regulation (5). Belgium argues that
there are
special rules which derogate from that Regulation and that, by
virtue of those special rules, the Commission may take as a
basis only the rules governing the operation of the ESF — the
source of the debts in respect of which the Commission is
requesting payment — in order
to determine how much
interest, if any, is payable. On that point, Belgium submits that
the Commission may claim interest only if interest was provided
for, and, according to Belgium, that was not the case at the
material time.

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Official Journal of the European Union

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In the further alternative, Belgium submits that, contrary to the
conclusion reached by the Commission, the rate of the interest
claimed is variable. In consequence,
it claims that the Court
should order the Commission to reimburse the excess interest
that Belgium has paid on the debts at issue.

(1) Council Regulation (EEC) No 2950/83 of 17 October 1983 on the
implementation of Decision 83/516/EEC the tasks of the European
Social Fund (OJ L 289, 22.10.1983, p. 1).

(2) Commission Decision 83/673/EEC of 22 December 1983 on the
(OJ L 377,

the European Social Fund (ESF)

management of
31.12.1983, p. 1).

(3) Order of the Court of First Instance in Case T-134/05 Belgium v

Commission [2006] ECR II-0000.

(4) Council Regulation (EC, Euratom) No 2988/95 of 18 December
the European Communities financial

1995 on the protection of
interests (OJ L 312, 23.12.1995, p. 1).

(5) Commission Regulation (EC, Euratom) No 2342/2002 of 23
December 2002 laying down detailed rules for the implementation
of Council Regulation (EC, Euratom) No 1605/2002 on the Financial
Regulation applicable to the general budget of
the European
Communities (OJ L 357, 31.12.2002, p. 1).

Pleas in law and main arguments

Applicant for a Community trade mark: Tihomir Lelas

Community trade mark concerned: Word mark Nanolat for goods
in Classes 1, 3 and 5 (application No 3 088 986)

Proprietor of the mark or sign cited in the opposition proceedings: The
applicant

Mark or sign cited in opposition: German word mark TANNO-
LACT for goods in Class 5

Decision of the Opposition Division: Opposition rejected

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC)
No 40/94, (1) as there is a likelihood of confusion between the
opposing marks

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

Community trade mark (OJ L 11, 1994, p. 1).

Action brought on 2 January 2007 — Galderma v OHIM
— Lelas (Nanolat)

(Case T-6/07)

(2007/C 56/64)

Language in which the application was lodged: German

Action brought on 4 January 2007 — Torres v OHIM–
Gala-Salvador Dalí (TG Torre Galatea)

(Case T-8/07)

(2007/C 56/65)

Language in which the application was lodged: Spanish

Parties

Parties

Applicant: Galderma SA (Cham, Switzerland) (represented by N.
Hebeis, lawyer)

Applicant: Miguel Torres S.A. (Barcelona, Spain) (represented by:
E. Armijo Chávarri, M.A Baz de San Ceferino, and A. Castán
Pérez-Gómez, lawyers)

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

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

Other party to the proceedings before the Board of Appeal of OHIM:
Tihomir Lelas

Other party to the proceedings before the Board of Appeal of OHIM:
Fundación Gala-Salvador Dalí

Form of order sought

— annul

the decision of

the Fourth Board of Appeal of
25 October 2006 in Case R 0146/2006-4 in so far as the
opposition against the goods ‘Pharmaceuticals; pharmaceu-
tical and veterinary products and preparations for health
care; soaps; cosmetics and hair lotions’ was rejected;

— refuse Community trade mark application 003088986

NANOLAT for the goods mentioned above;

— order OHIM to pay the costs.

Form of order sought

— Annul the decision of the Second Board of Appeal of the

Office of 24 October 2006 in case R 168/2006-2

— Order expressly that the Office pay the costs

Pleas in law and main arguments

Applicant for a Community trade mark: Fundación Gala-Salvador
Dalí

Community trade mark concerned: The figurative mark ‘TG Torre
Galatea’ for goods in Class 33 (application No 2730513)