Case C-306/08: Action brought on 9 July 2008 — Commission of the European Communities v Kingdom of Spain
Date: 2008-07-09
Institutions: Court of Justice
Subjects: European Commission, Spain, action for failure to fulfil an obligation, action programme, award of contract, town planning, works contract

C 223/36

EN

Official Journal of the European Union

30.8.2008

Appeal brought on 7 July 2008 by Leche Celta SL against
the judgment delivered on 23 April 2008 in Case T-35/07
Leche Celta SL v OHMI

Form of order sought

(Case C-300/08 P)

(2008/C 223/57)

Language of the case: French

— Declare that, in awarding the Integrated Action Programmes
in accordance with Law 6/1994 of 15 November, regulating
development activities in the Valencian Community,
the
Kingdom of Spain has failed to fulfil its obligations under
Council Directive 93/37/EEC (1) of 14 June 1993 concerning
the coordination of procedures for the award of public
works contracts, and particularly Articles 1, 6(6), 11, 12
and Title II of Capital IV thereof (Articles 24 to 29),

Parties

Appellant: Leche Celta SL (represented by: J Calderón Chavero
and T. Villate Consonni, lawyers)

Other party/parties to the proceedings: Office for Harmonisation in
the Internal Market (Trade marks and Designs), Celia SA

Form of order sought

— Annul the judgment of the Third Chamber of the Court of
First Instance of 23 April 2008 in Case T-35/07 on the
grounds that the marks CELIA/CELTA are clearly incompa-
tible;

— Order payment of costs.

and that, in awarding the Integrated Action Programmes in
accordance with Law 16/2005, Valencian development law,
implemented by Decree 67/2006 of the Region of Valencia
of 12 May, establishing the Regulation of Town Planning
and Management, the Kingdom of Spain has failed to fulfil
its obligations under Articles 2, 6, 24, 30, 31(4)(a), 48(2)
and 53 of Directive 2004/18/EC (2) of the European Parlia-
ment and of the Council of 31 March 2004 on the coordi-
the award of public works
nation of procedures
service
and public
contracts, public
contracts;

supply contracts

for

— order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

By its appeal the appellant challenges in essence the assessment
made by the Court of First Instance on the similarity of the
marks at issue. According to the appellant, the similarity of the
two marks is such that the relevant public will not be able to
detect any difference between them, the more so when the
goods covered by them are identical. The Court
therefore
committed several errors of assessment by judging the degree of
verbal and conceptual similarity between the marks at issue to
be low.

the awarding of

the Integrated
The Commission states that
Action Programmes
(IAP), an urban development measure
established by Law 6/1994 of 15 November, Valencian Law on
development activities (‘LRAU’) and its successor, Law 16/205,
Valencian development
relates to public works
law (‘LUV’)
contracts which should be awarded in accordance with Directive
the
93/37/EC and Directive 2004/18/EC.
Commission affirms that the IAP are public works contracts
awarded by local bodies which include the carrying out of
public infrastructure works by urban developers chosen by the
local authorities.

In other words,

Action brought on 9 July 2008 — Commission of the
European Communities v Kingdom of Spain

(Case C-306/08)

(2008/C 223/58)

Language of the case: Spanish

The Commission considers that the LUV infringes the Com-
munity public procurement directives in various aspects, in rela-
tion, inter alia, to the privileged position of the first bidder, the
experience of bidders in similar contracts, the provision of alter-
natives to the proposal of the first bidder ‘in open envelope’, the
regulation of variants, the criteria for awarding IAP contracts,
the possibility of amending the contract after it has been
awarded (for example, the possibility of increasing development
fees) and the regulation of cases of incomplete execution of the
contract by the bidder to which the contract has been awarded.
Some of those infringements concern both the LRAU and the
LUV, and others just the LUV.

Parties

Applicant: Commission of the European Communities (repre-
sented by: A. Alcover San Pedro and D. Kukovec, acting as
Agents)

Defendant: Kingdom of Spain

(1) OJ 1993 L 199, p. 54.
(2) OJ 2004 L 134, p. 114.