Case T-441/08: Action brought on 26 September 2008 — ICO Services Ltd v Parliament and Council
Date: 2008-09-26
Institutions: Court of First Instance
Subjects: EU Member State, European Council, European Parliament, action for annulment (EU), mobile phone, satellite communications, telecommunications industry

10.1.2009

EN

Official Journal of the European Union

C 6/33

— Order the Commission to pay the costs of these proceed-

ings.

Action brought on 26 September 2008 — ICO Services Ltd
v Parliament and Council

Pleas in law and main arguments

On the 31 October 2001 the applicant and the Commission
entered into a ‘shared-cost and research development’ type of
contract, as set out in Annex IV (‘Rules for financial participa-
tion by the Community’)
to the European Parliament and
Council Decision No 182/1999/EC of 22 December 1998
concerning the fifth framework programme of the European
Community for RDT activities (1998-2002) (1), whereby the
applicant, together with other contractors forming a consor-
tium, undertook to implement the project MUTEIS IST-2000-
30117, aimed at explaining and understanding the functional
and spatial diversity in Europe's digital economy from a macro
and local/urban perspective. The applicant proposed to the
Commission to participate in the project on the basis of the
‘Additional costs’ model of reimbursement
for the project's
to an exchange of correspondence
eligible costs. Further
between the parties, the Commission informed the applicant
that it had to temporarily reject personnel and overhead costs
presented by the latter and suggested that the applicant should
reconsider its participation on the basis of total eligible costs
participation or full participation with the lump sum option in
respect of overheads. An amended contract was signed by the
applicant, according to such terms, on the 30 April 2004.

On the basis of its application for damages, the applicant claims
that the Commission acted without or in excess of its powers
by purporting to amend the contract and to invoke Article 3(2)
of Annex II of the contract. The applicant submits that whilst
the Commission could have declined to accept the cost model
proposed to it by the applicant at the time the contract was
there is no provision in the contract allowing the
signed,
Commission to change the cost model
in the course of a
project. Moreover, in the absence of any reasonable grounds of
suspected fraud or financial irregularity on the part of the appli-
cant,
the Commission was not
entitled to invoke Article 3(2) of Annex II of the contract in
order to justify the alteration of the contact's terms.

the applicant submits that

Further, the applicant contends that the Commission breached
its contractual obligations, thereby infringing Article 1134, first
paragraph, of the Belgian Civil Code, according to which agree-
ments legally entered into operate as law for those who engaged
in them. According to the applicant, it is the cost model agreed
by the parties when signing the contract that should prevail for
its duration and the Commission therefore breached the
contract in requiring the applicant to change the cost model as
agreed by the parties.

In addition, the applicant submits that the Commission brea-
ched the principle of legitimate expectations and the principle
of sound administration.

(1) OJ 1999 L 26, p. 1.

(Case T-441/08)

(2009/C 6/68)

Language of the case: English

Parties

Applicant:
(represented by: S. Tupper, Solicitor)

ICO Services Limited (Slough, United Kingdom)

Defendants: European Parliament and Council of the European
Union

Form of order sought

— Order

that Decision No 626/2008/EC of

the European
Parliament and of the Council of 30 June 2008 on the selec-
tion and authorisation of systems providing mobile satellite
services (MSS)
is void in accordance with the provisions
under Article 230 CE and 231 EC;

— Order that the costs of the present action be paid by the
defendants and any other orders that the Court may deem
appropriate.

Pleas in law and main arguments

By means of its application pursuant to Article 230 EC, the
applicant seeks the annulment of Decision No 626/2008/EC of
the European Parliament and of the Council of 30 June 2008
on the selection and authorisation of systems providing mobile
satellite services (‘MSS’) (1).

The applicant claims that
the contested decision does not
address the existence of, nor gives consideration to, any MSS
System's pre-existing rights to band-width on the 2 GHz spec-
trum, whether derived from the International Telecommunica-
tions Union (‘ITU’) or the European Conference of Postal and
Telecommunications Administration regimes. Moreover,
the
applicant submits that the contested decision has the effect of
depriving it of property rights accrued to it under international
law that permit the applicant to offer MSS worldwide without
unlawful interference. In fact, the applicant claims to be the sole
operator with a system,
‘ICO-P’, providing MSS services in the
2 GHz Band. According to the applicant, the contested decision
attempts to allocate frequencies in the 2 GHz Band without
affording ICO-P's rights appropriate recognition, thereby putting
EU Member States in contravention of their Treaty obligations
with respect to the relevant rules of the ITU.

C 6/34

EN

Official Journal of the European Union

10.1.2009

The applicant, moreover, claims that
the contested decision
ignores the existence of the applicant's rights and sets up a
system through which the applicant's right to use the 2 GHz
spectrum is infringed. Moreover, it is submitted that the decision
puts in great jeopardy the applicant's considerable investments
to date and forces the applicant to participate to the EU tender
process while interfering in the day-to-day running of its busi-
ness.

Further, the applicant claims that by adopting the contested
decision, the defendant has acted disproportionately and in a
discriminatory way, contrary to the applicant's legitimate expec-
In fact, the applicant contends, that contrary to its
tations.
rights and/or legitimate expectations, the contested decision is
founded on the premise that the whole of the 2 GHz spectrum
is available for allocation, since it provides for the selection and
authorisation of operators of MSS to utilise the entire range of
frequencies existing in the 2 GHz spectrum.

In addition, it is submitted that the contested decision violates
the applicant's rights to the peaceful enjoyment of the benefits
accorded to the ICO-P system as a result of recognition of the
recording by the ITU in the Master International Frequency
Register maintained by the ITU, and other similar property
rights, contrary to Article 1 of Protocol 1 of the European
Convention of Human Rights and international law.

(1) OJ 2008 L 172, p. 15.

applicant's appeal and declared the Community design ‘Tour’
No 29178-0002 invalid;

— declare Community design ‘Tour’ No 29178-0002 in

class 09-01 valid.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of
invalidity has been sought: Community design No 29178/0002
for ‘phials’

Proprietor of the Community design: The applicant

Applicant for the declaration of invalidity: Heinz-Glas GmbH

Trade mark right of applicant for the declaration: An unregistered
phial named ‘Empire’ (reference number F 3990)

Decision of the Cancellation Division: Declaration of invalidity of
the Community design

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: The Community design does have the requisite
novelty; the documents which Heinz-Glas GmbH submitted to
show that it disclosed to the public a prior design of an identical
phial have no evidential value.

Action brought on 6 October 2008 — Coverpla v OHIM —
Heinz-Glas (design)

Action brought on 6 October 2008 — DHL Aviation et
DHL Hub Leipzig/Commission

(Case T-450/08)

(2009/C 6/69)

Language in which the application was lodged: French

(Case T-452/08)

(2009/C 6/70)

Language of the case: English

Parties

Parties

Applicant: Coverpla (Nice, France) (represented by: P. Greffe and
M. Chaminade, lawyers)

Applicant(s): DHL Aviation NV (Zaventem, Belgium) and DHL
Hub Leipzig GmbH (Schkeuditz, Germany)
(represented by:
A. Burnside, Solicitor and B. van de Walle de Ghelcke, lawyer)

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

Defendant(s): Commission of the European Communnities

Other party to the proceedings before the Board of Appeal of OHIM:
Heinz-Glas GmbH (Kleintettau, Germany)

Form of order sought

Form of order sought

— Annul the decision of the Third Board of Appeal of 7 July
2008 (Case R 1411/2007-3) in so far as it dismissed the

— Annul the decision in so far as it identifies the applicants as
beneficiaries of State aid that is considered to be incompa-
tible with the common market, and in so far as the decision
orders Germany to recover the alleged State aid, and

— Order the Commission to pay the costs.