Case T-199/08: Action brought on 3 June 2008 — Ziegler v Commission
Date: 2008-06-03
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), award of contract, fine, price agreement, provision of services, unlawful agreement

C 183/28

EN

Official Journal of the European Union

19.7.2008

Action brought on 30 May 2008 — Antwerpse
Bouwwerken v Commission

(Case T-195/08)

(2008/C 183/52)

Language of the case: Dutch

Parties

Applicant: Antwerpse Bouwwerken NV (Antwerp, Belgium)
(represented by: J. Verbist and D. de Keuster, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul (i) the decision of 29 April 2008, notified by the
Commission by letter of 29 April 2008, received by the
applicant on 5 May 2008, by which the Commission
that the latter's tender had been
informed the applicant
from the
unsuccessful, as further explained in a letter
European Commission of 6 May 2008 and received by the
applicant on 8 May 2008, in which the Commission sets
out its reasons for its rejection decision, and (ii) the decision
of 23 April 2008 on the award of the contract, notified by
the Commission by letter of 15 May 2008, received by the
applicant on 16 May 2008;

In addition, the decision on the award of the contract does not
satisfy the principle of transparency, as essential elements of the
assessment records, as provided to the applicant, have been
rendered illegible.

(1) B-Geel: Construction of a reference materials production hall

(2006/S 102-108785).

(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) Commission Regulation

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

Euratom) No

2342/2002

(EC,

(4) Directive 2004/18/EC of

the
Council of 31 March 2004 on the coordination of procedures for
the award of public works contracts, public supply contracts and
public service contracts (OJ 2004 L 134, p. 114).

the European Parliament and of

Action brought on 3 June 2008 — Ziegler v Commission

(Case T-199/08)

(2008/C 183/53)

Language of the case: French

— declare the Commission to be non-contractually liable for
the damage suffered by the applicant, to be quantified at a
later date;

Parties

— order the Commission to pay the costs.

Applicant: Ziegler SA (represented by: J.-L. Lodomez, lawyer)

Pleas in law and main arguments

Defendant: Commission of the European Communities

The applicant submitted a tender in response to the Commis-
sion's call for tenders for the construction of a reference mate-
rials production hall (1). Ultimately, the applicant's tender was
not selected by the Commission.

Form of order sought

The applicant relies in its application on an infringement of
Article 91 of Regulation 1605/2002 (2) and of Articles 122,
138 and 148 of Regulation 2342/2002 (3) in conjunction with
Articles 2 and 28 of Directive 2004/18/EC (4).

— annul

the European Commission Decision of 11 March
2008 on a proceeding under Article 81 of the EC Treaty
and Article 53 of the EEE Agreement (Case COMP/38.453
— International Removal Services), which imposes a fine of
EUR 9 200 000,00 on the applicant;

is apparent

According to the applicant,
from the official
it
records of selection of tenders that the successful tender did not
comply with an essential tendering specification and that, conse-
quently, it should have been rejected for failure to comply with
the conditions of the contract. The intervention by the tenderer
of the successful bid was not merely a case of the tender being
clarified but of it being supplemented, which was not permis-
sible at that stage of the procedure.

— in the alternative, cancel the fine;

— in the further alternative, substantially reduce the amount of

the fine;

— in any event, order the European Commission to pay all the

costs.

19.7.2008

EN

Official Journal of the European Union

C 183/29

Pleas in law and main arguments

By the present action, the applicant seeks the annulment of
Commission Decision C(2008) 926 final of 11 March 2008 in
Case COMP/38.453 — International Removal Services, by
which the Commission found that
certain undertakings,
including the applicant, infringed Article 81 of the EC Treaty
and Article 53 of the European Economic Area Agreement by
fixing prices in Belgium for international removal services, by
sharing part of that market and by rigging the procedure under
invitations to tender.

its allegations,

the applicant claims that

the
In support of
Commission made manifest errors of assessment and of law in
the definition of the market in question and in the evaluation of
its size and of the market shares of each of the companies in
question.

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

Other party to the proceedings before the Board of Appeal: Illinois
Tool Works Inc. (Glenview, United States)

Form of order sought

— Annul the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 3 March 2008 in case R 638/2007-2; and

— grant applicant's request for the cancellation of the Com-

munity trade mark concerned.

The applicant relies, in addition, on pleas in law alleging breach
of the duty to state the reasons for the decision, of the rights of
the defence, of the right of access to the file, of the right to fair
procedure and of the general principle of sound administration.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘FOODLUBE’ for
goods in classes 1 and 4 — registration No 1 647 734

So far as concerns the fine imposed and its amount, the appli-
cant claims that:

Decision of the Cancellation Division: Refusal of the request for the
declaration of invalidity

— the Commission did not show that the practices in questions
had appreciably affected trade between the Member States;

— the amount of the find is disproportionate in relation to the
effective extent of the practices and their actual effect on the
market; and

— the practice of bogus quotes was known and accepted by
the Commission for a long time; the lack of any reaction by
the Commission led the applicant to believe that the practice
was lawful.

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) of Council Regu-
lation No 40/94 as the trade mark concerned is devoid of any
distinctive character; infringement of Article 7(1)(c) of Council
Regulation 40/94 as the trade mark concerned is not capable of
distinguishing the indicated goods in terms of their origin.

into account,

as mitigating circumstances,

Finally, the applicant maintains that the Commission did not
take
the
concerted practice ceased long ago so far as the applicant was
concerned and that bogus quotes were a response to market
demand and not a cartel or concerted practice. The applicant
also relies on breach of the principle of equal treatment.

that

Action brought on 5 June 2008 — CLL Centre de langues v
Commission

(Case T-202/08)

(2008/C 183/55)

Language of the case: French

Action brought on 22 May 2008 — Interflon v OHIM —
Illinois Tool Works (FOODLUBE)

Parties

(Case T-200/08)

(2008/C 183/54)

Applicant: Centre de langues à Louvain-la-Neuve et -en-Woluwe
(CLL Centre de langues)
(repre-
sented by: F. Tulkens and V. Ost, lawyers)

(Louvain-la-Neuve, Belgium)

Language in which the application was lodged: English

Defendant: Commission of the European Communities

Parties

Form of order sought

— Annul the rejection decision;

Applicant: Interflon BV (Roosendaal, Netherlands) (represented
by: S. M. Wertwijn, lawyer)

— Order the Commission to bear its own costs and to pay

those incurred by CLL.