Case T-176/08: Action brought on 9 May 2008 — Infeurope v Commission
Date: 2008-05-09
Institutions: Court of First Instance
Subjects: European Commission, European Union Intellectual Property Office, action for annulment (EU), appeal, award of contract, indemnification, information technology industry, provision of services, termination of a contract

C 171/44

EN

Official Journal of the European Union

5.7.2008

Mark or sign cited: The national word trade mark ‘Metec’ for
goods and services in classes 16, 35, 37, 38, 41 and 42; the
international word trade mark ‘Metec’ for goods and services in
classes 16, 35, 37, 38, 41 and 42

— order the European Commission to pay to the applicant the
sum of EUR 1 209 037 plus 4 % interest on the said sum
from 3 May 2008, respectively 8 % interest on the said sum
from the date of judgment;

Decision of the Opposition Division: Upheld the opposition with
respect to all goods and services

— order the European Commission to produce certain docu-
ments relating to the procedure for evaluating the tenders;

Decision of the Board of Appeal: Annulment of the contested deci-
sion and rejection of the opposition in its entirety

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94 as the Board of Appeal was incorrect to allow
the appeal and to state that there is no similarity between the
trade marks; infringement of Article 62 of Council Regulation
No 40/94 as the Board of Appeal rendered a decision on facts
which were not subject to appeal.

Action brought on 9 May 2008 — Infeurope v Commission

(Case T-176/08)

(2008/C 171/84)

Language of the case: English

Parties

Applicant: Infeurope SA (Luxembourg, Luxembourg) (represented
by: O. Mader, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— declare that the European Commission has failed to annul
the decision of awarding the framework contracts under the
call for tenders procedure AO/042/05 of the OHIM on soft-
ware maintenance;

— declare that the European Commission has failed to termi-
nate the specific contracts concluded under the said frame-
work contracts;

— order the European Commission to pay to the applicant the
sum of EUR 37 002 plus 4 % interest on the amount of
EUR 31 650 from 29 August 2006, plus 4 % interest on
the amount of EUR 3 650 from 3 December 2007, plus
4 % interest on the amount of EUR 1 702 from 3 May
2008; respectively 8 % interest on sum of EUR 37 002
from the date of judgment;

— order the European Commission to pay the costs.

Pleas in law and main arguments

The applicant seeks the declaration that the Commission failed
to annul the decision taken by the Office for Harmonisation in
(OHIM) awarding multiple framework
the Internal Market
contracts for the provision of IT maintenance services under the
tender procedure AO/042/05 ‘E-Alicante: software maintenance
relating to OHIM core business systems (management and regis-
tration of trade marks and designs)’ (1) and that it has failed to
terminate the corresponding specific contracts under the frame-
work.

The applicant claims that the tender process as well as the
implementation of the specific contracts further to the tender
suffer from a series of severe irregularities such as: the irregular
award criteria, an incorrect composition of
the evaluation
committee, the fact that the contracts were awarded after the
expiry of the period of tender offers' validity and that the OHIM
agreed on various considerable changes to the terms of the
specific contracts.

The applicant claims that the OHIM, as contracting authority,
had breached the principles of equal treatment, of transparency
and of good administration and had misused the instrument of
framework contracts. It had further infringed a number of stipu-
lations in the Financial Regulation (2).

The applicant claims that the Commission, as supervisory body
of the OHIM (3), had failed to take appropriate action against
these infringements. The applicant maintains that the discretion
of the Commission whether or not to take action against the
breaches of law and establish legality is reduced to zero thus
entailing an obligation to act.

Furthermore,
the applicant asks to be compensated for the
damages suffered as a result of the irregularities in the said
tendering procedure and its subsequent implementation.

(1) OJ 2006/S 135-144019.
(2) Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002
on the Financial Regulation applicable to the general budget of the
European Communities (OJ 2002 L 248, p. 1).

(3) The Article VI.4.2 of the Contract notice concerning the lodging of
the appeals makes reference to the Article 118 of the Council Regu-
lation (EC) No 40/94 of 20 December 1993 on the Community
trade mark (OJ 1994 L 11, p. 1) which stays that ‘Referral shall be
made to the Commission within 1 month of the day on which the
party concerned first became aware of the act in question’.