Case T-170/08: Action brought on 13 May 2008 — Commission v I.D. FOS Research
Date: 2008-05-13
Institutions: Court of First Instance
Subjects: European Commission, appeal, contract, materials technology, quality control of industrial products, redemption, research programme

C 171/42

EN

Official Journal of the European Union

5.7.2008

Pleas in law and main arguments

By a decision of 10 November 2005 adopted pursuant
to
Article 24(1) of Regulation 1/2003 (1) the Commission imposed
a periodic penalty payment on the applicant
for failure to
comply with the obligation to make the technical documenta-
tion embodying the Interoperability Information available to
interested undertakings on reasonable and non-discriminatory
terms pursuant
to Article 5(a) of Commission Decision
2007/53/EC of 24 March 2004 (2). The contested decision fixed
the definitive amount of the periodic penalty payment for the
period between 21 June 2006 and 21 October 2007 inclusive
at EUR 899 million. The applicant seeks the annulment of the
contested decision on the following grounds:

1. The Commission erred by subjecting Microsoft to periodic
penalty payments to force it to apply ‘reasonable’ price terms
without
in the
first specifying what price terms would,
Commission's view, be ‘reasonable’ so as to allow Microsoft
to know what to do to avoid the imposition of such penalty
payment.

2. The Commission committed a manifest error of assessment
and violated Article 253 EC by concluding that published
rates adopted by Microsoft were unreasonable and contrary
to the 2004 decision without taking account of the facts that
(i) these published rates were expressly intended to facilitate
negotiations between Microsoft and prospective licensees
and (ii) Microsoft had, in consultation with the Commission,
created a mechanism whereby the trustee would review the
rates proposed by Microsoft if any prospective licensee failed
to the
to reach agreement which was virtually identical
in NDC
mechanism created by the Commission itself
Health/IMS Health: Interim Measures (‘IMS Health’) (3). The
Commission also committed a manifest error of assessment
by (i)
these
published rates were set by Microsoft at a figure lower than
the rates that a third party expert determined to be reason-
able (ii) failing to give due weight to the fact that no prospec-
tive licensee failed to reach agreement with Microsoft and
(iii)
the ‘no
failing to consider the fact that licensees of
patent’ licence also obtain rights to use Microsoft's patents.

failing to give due weight

to the fact

that

Microsoft
commenting on all relevant aspects of the case.

there by preventing Microsoft

is fined,

from

6. The amount of the periodic penalty payment is excessive and
disproportionate. Among other reasons,
the Commission
failed to take due account of the fact that the contested deci-
sion only concludes that the royalties allegedly established by
Microsoft under one particular
licence (the ‘no patent’
licence) were unreasonable, and therefore doesn't challenge
(i) the royalties allegedly established by Microsoft for all of its
intellectual property rights incorporated in the entirety of the
Interoperability Information that Microsoft
is required to
disclose under Article 5 of the 2004 decision or (ii) the
completeness and accuracy of the Interoperability Informa-
tion.

(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 (Text with EEA relevance) (OJ 2003 L 1, p. 1).
(2) Commission Decision of 24 May 2004 relating to a proceeding
pursuant to Article 82 of the EC Treaty and Article 54 of the EEA
Agreement against Microsoft Corporation (Case COMP/C-3/37.792
(notified under document number C(2004) 900)
— Microsoft)
(OJ 2007 L 32, p. 23).

(3) Commission Decision 2002/165/EC of 3 July 2001 relating to a
proceeding pursuant
the EC Treaty (Case
to Article 82 of
COMP D3/38.044 — NDC Health/IMS Health: Interim measures)
(notified under document number C(2001) 1695) (OJ 2002 L 59,
p. 18).

(4) Case T-201/04, Microsoft v. Commission, not yet published in the

ECR.

Action brought on 13 May 2008 — Commission v I.D. FOS
Research

(Case T-170/08)

(2008/C 171/81)

Language of the case: Dutch

3. The Commission committed a manifest error of assessment
by requiring Microsoft to establish that its trade secrets were
innovative under a heightened patentability test in order to
justify the imposition of royalties for a licence to such trade
secrets. The Commission also violated Article 253 EC by
failing to take account of numerous arguments raised by
Microsoft on the basis of reports prepared by patent experts
which criticised the Commission's approach.

Parties

Applicant: Commission of the European Communities (repre-
sented by: R. Lyal and W. Roels, Agents)

Defendant: I.D. FOS Research EEIG (Mol, Belgium)

4. The Commission violated Article 233 EC by failing to take
the necessary measures to comply with the judgment in Case
T-201/04 (4) in so far as the Commission based its assess-
ment reports prepared by the trustee on the basis of docu-
ments obtained through powers of
investigation that the
Court of First Instance held to be unlawful.

5. The Commission denied Microsoft's right to be heard by
failing to give Microsoft an opportunity to make known its
the reference period for which
views after

the end of

Form of order sought

— order the defendant to pay to the Commission the sum of
EUR 21 599,26 together with default interest in the sum of
EUR 6 375,94;

— order the defendant to pay default interest of EUR 3,99 per
day from 8 January 2007 until the date of full repayment of
the debt;

— order the defendant to pay the costs.

5.7.2008

EN

Official Journal of the European Union

C 171/43

Pleas in law and main arguments

The European Community, represented by the Commission,
entered into Contract BRPR-CT-95-0099 with the defendant on
12 December 1995. The contract concerned a project on
improved quality assurance and methods of grouting post-
tensioned cables. The contract and the project came into being
within the framework of the specific programme for research
and technological development, including demonstration, in the
field of industrial and materials technologies (1).

An examination of the defendant's performance of the contract
was undertaken after completion of the contract. On the basis
of the results of that examination, the Commission decided to
demand repayment of part of the sums paid, in accordance with
the general conditions of the contract.

(1) Council Decision 94/571/EC of 27 July 1994 adopting a specific
programme for research and technological development,
including
demonstration, in the field of industrial and materials technologies
(1994-1998) (OJ 1994 L 222, p. 19).

confirmed by letter of 7 March 2008, the defendant sent the
applicant a revised calculation of the payment to the applicant
that was still outstanding, in which part of the applicant's costs
were deemed to be ineligible for support. The applicant brought
the present action against the Commission's letter of 7 March
2008.

The applicant claims in support of its action that the contested
decision infringes the duty to give reasons since the defendant
changed the grounds for its decision on numerous occasions. In
addition, there has been an infringement of the fundamental
principle of the right to a fair hearing. Finally, the facts of the
case were assessed in a manner incompatible with the regula-
tions of the Grant Agreement and the principle of protection of
legitimate expectations.

Action brought on 13 May 2008 — Messe Düsseldorf v
OHIM — Canon Communications (MEDTEC)

(Case T-173/08)

(2008/C 171/83)

Action brought on 7 May 2008 — Berliner Institut für
Vergleichende Sozialforschung v Commission

Language in which the application was lodged: English

(Case T-171/08)

(2008/C 171/82)

Language of the case: German

Parties

Applicant: Berliner Institut für Vergleichende Sozialforschung e.V.
(Berlin, Germany) (represented by: U. Claus, lawyer)

Parties

Applicant: Messe Düsseldorf GmbH (Düsseldorf, Germany)
(represented by: I. Friedhoff, lawyer)

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

Other party to the proceedings before the Board of Appeal: Canon
Communications LLC (Los Angeles, United States)

Defendant: Commission of the European Communities

Form of order sought

Form of order sought

— Annul the Commission's decision of 30 October 2007 in
the form of the letter of 7 March 2008 confirming approval
of a payment
in the amount of EUR 9 215,20 in the
context of the ‘Traumatised refugees in the EU’ project by
reason of ‘Grant Agreement JAI/2004/ERF/073’ in so far as
the
than
EUR 9 215,20;

payment of more

applicant was

denied

— order the Commission to pay the costs.

Pleas in law and main arguments

In May 2005, the applicant and the Commission signed an
agreement on support for a project in connection with the
European Refugee Fund. By letter of 30 October 2007,

— Annul the decision of the First Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 6 March 2008 in case R 0989/2005-1; and

— order OHIM/the other party to the proceedings before the

Board of Appeal to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The other party to the
proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark ‘MEDTEC’
for goods and services in classes 16, 35 and 41 — application
No 2 885 853

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