Case T-100/07: Action brought on 4 April 2007 — UPS Europe and UPS Deutschland v Commission
Date: 2007-06-09
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), complaint to the Commission, dominant position, postal service, restriction on competition

C 129/16

EN

Official Journal of the European Union

9.6.2007

COURT OF FIRST INSTANCE

Action brought on 26 March 2007 — Imelios v
Commission

(Case T-97/07)

(2007/C 129/28)

Language of the case: French

Parties

Applicant: Imelios SA (Vélizi Villacoublay, France) (represented
by C. Curtil, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— In terms of procedure,

to declare that

the procedure
followed by OLAF and the Commission was not adversarial
in nature; that OLAF made use of anonymous sources, as
OLAF itself has accepted; that OLAF and the Commission
refused to communicate the enquiry report to the applicant;
that
the Commission's decision failed to state adequate
reasons, and accordingly, to annul the debit note.

— In the alternative, to declare that the documentary evidence
produced by the applicant was not taken into consideration;
that no examination was made into the liability of the …
group, and accordingly to annul the debit note as to its
substance.

— In any event, to declare that the final instalment of the grant
was not paid to the applicant, whereas the latter did not
waive its right to its payment in any way; accordingly, to
order the Commission to pay to the applicant the sum of
EUR 34 368, together with interest from the date the action
was raised; to order the Commission to pay to the applicant
the sum of EUR 50 000 by way of damages; to order the
Commission to pay to the applicant the sum of EUR 50 000
in respect of
to order the
the costs of
Commission to pay the costs.

the procedure;

Pleas in law and main arguments

On 21 December 1999, the applicant signed, together with the
European Community, represented by the European Commis-
sion, a contract IST-1999-10934 — ASSIST relating to the
‘Knowledge Management
for Help Desk Operators’ project,
which was entered into under the fifth framework programme
of the Community for research, technological development and
demonstration activities (1998-2002),
in the field of user-
friendly information.

Following the enquiry carried out by OLAF and its audit report,
the Commission sent the debit note to the applicant, requiring
the repayment of the amount already paid by way of Com-
munity grant, pursuant to the relevant provision of the contract

allowing the Commission to require such a repayment in the
event of a finding of fraud or serious financial irregularities in
the implementation of the project. That decision represents the
contested decision in the present action. In addition, the appli-
cant requests the Court of First Instance to order the Commis-
sion to pay the final instalment of the grant and to order the
Commission to compensate it for the loss and damage it has
suffered by reason, first, of the non-payment of the final instal-
ment of the grant and, secondly, by reason of the procedures
initiated, initially by OLAF, and subsequently by the Commis-
sion.

In support of its application for annulment, the applicant alleges
an infringement of fundamental rights, in particular the right to
in the audit enquiry relating to the ASSIST
a fair hearing,
project carried out by OLAF. It claims that it was not in a posi-
tion to make relevant observations during the inquiry stage and
that OLAF's final report, on which the Commission's decision
was based, was not sent
from
to it,
replying to the accusations made against it.

thereby preventing it

In addition, the applicant claims that the decision failed to state
adequate reasons and that the objections were notified to it out
of time.

In the alternative, the applicant puts forward a number of pleas
in law relating to the substance of the contested decision, and
claims in particular that the Commission did not take into
account the documentary evidence put forward by the applicant
concerning expenditure incurred. In addition, it claims that it is
the LA POSTE group, which was the real beneficiary of the
grant, and not itself, which should be held liable for any irregu-
larities that may have occurred.

Action brought on 4 April 2007 — UPS Europe and UPS
Deutschland v Commission

(Case T-100/07)

(2007/C 129/29)

Language of the case: English

Parties

Applicants: UPS Europe NV/SA (Brussels, Belgium) and UPS
Deutschland Inc. & Co. OHG (Neuss, Germany) (represented by:
T. Ottervanger and E. Henny, lawyers)

Defendant: Commission of the European Communities

9.6.2007

EN

Official Journal of the European Union

C 129/17

Form of order sought

Action brought on 26 March 2007 — Dada v OHIM —
Dada (DADA)

In light of their submissions, the applicants respectfully request
the Court:

— to declare in accordance with Article 232 EC that

the
Commission has failed to act by not having delivered a deci-
sion on the applicants' complaint lodged with the Commis-
sion on 22 April 2004;

— to order the Commission to pay the costs incurred by the

applicants in the proceedings;

Parties

(Case T-101/07)

(2007/C 129/30)

Language in which the application was lodged: Italian

— to take such further action as the Court may deem appro-

priate.

Pleas in law and main arguments

By means of their application, the applicants initiate an action
under Article 232 EC, claiming that the Commission failed to
take a definitive decision on their complaint initially filed on
22 April 2004, followed by an invitation to act,
lodged on
27 November 2006, with regard to an alleged abuse of domi-
nance by Deutsche Post under Article 82 EC.

The applicants sustain that they have a legitimate interest to
bring such a complaint in accordance with the requirement of
Article 7(2) of Council Regulation 1/2003 (1) and are directly
and individually concerned by the Commission's failure to act.
In fact, the applicants claim to be affected by the excessive
pricing of Deutsche Post in the downstream market, both as a
consumer as well as a competitor.

that

to initiate a procedure against

The applicants further submit
in accordance with the
Commission Notice on the handling of complaints under
Article 81 and 82 EC (2), the Commission is required, upon
receipt of a complaint that Article 82 EC has been infringed,
either
the
complaint or
to adopt a definitive decision rejecting the
complaint, after having given the complainant the opportunity
to comment. However, the applicants claim that although they
have submitted their comments on the preliminary rejection of
the complaint within the given time-limit, the Commission did
not take any definitive decision, in breach of Community law.

the subject of

Finally, the applicants contend that, considering the circum-
stances of the case, the period of approximately three years that
has
lapsed during which they have repeatedly urged the
Commission to take action is sufficiently long to enable it to
take a definitive decision. In particular, the period of 18 months
that has lapsed since the applicants submitted their final obser-
vations, is according to the applicants more than reasonable to
enable the Commission to close the third stage of investigation.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the
implementation of the rules on competition laid down in Articles 81
and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1-25).

(2) OJ C 101, 27.4.2004, p. 65-77.

Applicant: Dada SpA (Florence, Italy) (represented by: D. Caneva
and G. Locurto, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM:
Dada Srl

Form of order sought

— annul the decision of the First Board of Appeal of OHIM of
12 June 2007 in Case R-1342/2005-1, notified to Dada
SpA on 25 June 2007, and consequently allow application
for registration No 1 903 111 lodged by Dada SpA also in
respect of the services referred to in Class 42 of the Nice
Agreement;

— order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Dada SpA

Community trade mark concerned: Figurative mark composed of
the word DADA reproduced in capital letters on a rectangular
black background surmounted by the image of an atom; regis-
tration No 1 903 111 in respect of services in Class 42.

Proprietor of the mark or sign cited in the opposition proceedings:
DADA Srl

Mark or sign cited in opposition: Italian descriptive mark DADA, in
respect of services in Classes 35, 37, 38 and 42, and the
company name DADA, used in trade and commerce in Italy to
denote the following activities:
‘business management; business
administration; office functions, real-estate affairs, telecommuni-
cations, education, training, legal services, computer program-
ming’.

Decision of the Opposition Division: Opposition upheld and refusal
of the application for registration for the services at issue.

Decision of the Board of Appeal: Contested decision upheld and
dismissal of the appeal.

Pleas in law: Insufficient evidence of use of the national mark
pleaded by the opponent and absence of likelihood of confu-
sion.