Case T-455/07: Action brought on 14 December 2007 — Centre d'Etude et de Valorisation des Algues v Commission of the European Communities
Date: 2007-12-14
Institutions: Court of First Instance
Subjects: EU financing, European Commission, appeal, contract, fraud, project management, redemption, sustainable development, working time

C 51/46

EN

Official Journal of the European Union

23.2.2008

— Erroneous application of the Leniency Notice of 2002 (2), as

the reduction of the fine by 30 % was too low.

Action brought on 14 December 2007 — Centre d'Etude et
de Valorisation des Algues v Commission of the European
Communities

In connection with the allegation of trilateral cooperation in the
sector of zip fasteners, it is submitted as follows:

— Unlawful taking into account of

the conduct of a joint
venture of the first and second applicants and erroneous
calculation of the fine imposed on the third applicant;

— Infringement of Section C or D of the Leniency Notice of

1996 (3).

With regard to the allegation of bilateral cooperation with an
undertaking of the Coats group, it is submitted as follows:

— Infringement of Article 23(2) of Regulation No 1/2003,
since that cooperation and one of the infringements pena-
lised by Commission Decision C(2004) 4221 final of
26 October 2004 (Case COMP/F-1/38.338 — PO/Needles)
were split up into two separate infringements, although they
should be treated as a single infringement;

— Infringement of the ne bis in idem principle by imposing a

second fine in respect of the same act;

— Infringement of Article 253 EC by failing to provide suffi-
cient reasons for the splitting up of a single infringement;

— Infringement of the principle of cooperation and of equal

treatment.

With regard to the determination of the fine, the following is
submitted:

— Infringement of the Guidelines on the method of setting
fines (4) and of the principle of proportionality and of the
principle of equal treatment;

— Infringement of Article 253 EC by failing to provide suffi-
cient reasons for the setting of the starting amount and for
the definition of the objectively relevant markets;

— In the alternative, infringement of the principle of propor-
tionality by the excessive overall burden imposed on the
applicants and failure to provide adequate reasons.

(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 2003 L 1, p. 1).

(2) Commission notice on immunity from fines and reduction of fines

in cartel cases (OJ 2002 C 45, p. 3).

(3) Commission Notice on the non-imposition or reduction of fines in

cartel cases (OJ 1996 C 207, p. 4).

(4) Guidelines on the method of setting fines imposed pursuant to
Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC
Treaty (OJ 1998 C 9, p. 3).

(Case T-455/07)

(2008/C 51/86)

Language of the case: French

Parties

Applicant: Centre d'Etude et de Valorisation des Algues (CEVA)
(Pleubian, France) (represented by: J.-M. Peyrical, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Principally, declare that

the procedure is

irregular and
that there has been an infringement of the right to be heard
and,
debit note
No 3240909271, dated 4 October 2007, and order the
Commission to reimburse that note to CEVA;

the Commission's

therefore,

annul

— In the alternative, declare that the errors noted in the RAIA
audit report are not so serious that Article 3.5 of Annex II
to the contract may be applied to them, annul the Commis-
sion's debit note No 3240909271, dated 4 October 2007,
to the extent
the
amounts paid to CEVA under the BIOPAL contract and
order the Commission to reimburse that note to CEVA;

reimbursement of

it seeks full

that

— In the very much further alternative, appoint an expert of
the Court's choice whose mission will be: to take CEVA's
method of calculation; apply that method to the BIOPAL
contract and to the reality of the costs in the expenditure
accounts; express as a percentage the difference between the
amount of the errors in the recording of working time as
submitted to the Commission and the amount of
that
working time as recorded under the method of calculation
now applicable to CEVA; carry out an assessment of the
direct working time necessary to carry out CEVA's missions
in the framework of the BIOPAL contract; state whether that
real working time, needed to carry out those missions, could
be less than the 5 796,67 direct hours calculated by CEVA.

Pleas in law and main arguments

In the present action, the applicant is seeking the annulment of
the debit note whereby the Commission demanded reimburse-
ment of all the payments on account made to the applicant in
the framework of BIOPAL contract No QLK5-CT-2002-02431,
concerning the key action ‘Sustainable Agriculture, Fisheries and
Forestry, and Integrated Development of Rural Areas including
Mountain Areas’, which is part of
the ‘Quality of Life and
management of living resources’ (1)

23.2.2008

EN

Official Journal of the European Union

C 51/47

In support of its application, the applicant puts forward a plea
in law alleging an infringement of the rights of the defence inas-
much as the Commission, contrary to the principle of the right
to be heard, based the demand for reimbursement on time
sheets and conclusions drawn by OLAF of which the applicant
had no knowledge.

particular,
inform the applicant of the relative merits of the
successful tenderer. According to the applicant, EFSA mixed
selection criteria with award criteria when evaluating the bids
and used evaluation criteria that were not expressly included in
the call for tender. Furthermore, the applicant alleges that EFSA
committed manifest errors of assessment.

In the alternative, the applicant contests the Commission's appli-
cation of Article 26 of Annex II to the contract and its finding
that the facts of the case were sufficiently serious to invoke the
concept of serious financial irregularity justifying a full reimbur-
sement of the payments on account.

(1) Fifth European Community

covering
Research, Technological Development and Demonstration activities
1998-2002.

Framework Programme

Action brought on 17 December 2007 — Dominio de la
Vega v OHIM — Ambrosio Velasco (DOMINIO DE LA
VEGA)

(Case T-458/07)

(2008/C 51/88)

Language in which the application was lodged: Spanish

Action brought on 10 December 2007 — Evropaïki
Dynamiki v EFSA

Parties

(Case T-457/07)

(2008/C 51/87)

Language of the case: English

Parties

Applicant: Dominio de la Vega, S.L.
sented by: E. Caballero Oliver,
Martinéz, lawyer)

(Requena, Spain)
(repre-
lawyer and A. Sanz-Bernell y

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

Other party to the proceedings before the Board of Appeal of OHIM:
Ambrosio Velasco, S.A. (Dicastillo, Navarra, Spain)

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

Form of order sought

Defendant: European Food Safety Authority (EFSA)

— Annul the decision of the Board of Appeal of OHIM of
3 October 2007 (Case R 1431/2006-2) and consequently
dismiss the opposition filed by Ambrosio Velasco, S.A.;

Form of order sought

— Annul the decision of EFSA to evaluate the applicant's bid as
to the successful

not successful and award the contract
contractor;

— order EFSA to pay the applicant's legal and other costs and

expenses incurred in connection with this application.

Pleas in law and main arguments

The applicant submitted a bid in response to the defendant's call
for an open tender for the provision of IT consultancy assistance
(OJ 2007/S 97-118626). The applicant contests the defendant's
decision of 1 October 2007 to reject the applicant's bid and to
award the contract to another tenderer.

— Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Dominio de la Vega, S.L.

Community trade mark concerned: Figurative mark ‘DOMINIO DE
LA VEGA’ for goods in Classes 33, 42 and 43 (Application
No 2.789.576).

Proprietor of the mark or sign cited in the opposition proceedings:
Ambrosio Velasco, S.A.

Mark or sign cited in opposition: Figurative Community trade mark
‘PALACIO DE LA VEGA’ for goods in Class 33.

In support of its application, the applicant submits that EFSA
failed to state reasons in accordance with Article 253 EC and, in

Decision of
those goods,
rejection of the application for those goods.

the Opposition Division: Opposition upheld for all
in Class 33, against which it was directed, and