EN
C 303/52
Official Journal of the European Union
8.8.2022
2.
Second plea in law, alleging that the Commission wrongly and unlawfully brought the data GESTDEM 2021/4203 and GESTDEM 2021/4204 within the scope of a general presumption of confidentiality.
The applicant does not see how any communication between the Commission and the Netherlands competition authority should belong in the administrative file.
Documents which are not part of that file cannot simply be brought within that presumption.
Action brought on 13 June 2022 — Aitana v EUIPO (Case T-355/22) (2022/C 303/67) Language of the case: Spanish Parties Applicant: Aitana Actividades de Construcción y Servicios, SL (Alicante, Spain) (represented by: A. Martí Martín, lawyer) Defendant: European Union Intellectual Property Office (EUIPO)
Form of order sought The applicant claims that the General Court should: — uphold the application of the rules governing the contract (Royal Decree-Law 3/2022).
(1) — uphold the right of Aitana Actividades de Construcción y Servicios, SL (Aitana ACS, SL) to a review of the prices set out in the contract, pursuant to the doctrine of Rebus Sic Stantibus (unforeseeable risk).
— uphold the right of Aitana ACS, SL to a review of the prices set out in the contract, pursuant to the principle of legitimate expectations.
Pleas in law and main arguments In support of the action, the applicant relies on four pleas in law. 1.
First plea in law, based on the supplementary application of Spanish law, as the law governing the contract. — In that regard, the applicant submits that Clause I.10.1 of the contract declares Spanish law to be applicable on a supplementary basis.
Royal Decree-Law 3/2022 of 1 March is of supplementary application.
It is appropriate to uphold the right to a review of the prices set out in the contract, pursuant to the provisions of Royal Decree-Law 3/2022. 2.
Second plea in law, alleging that the contract prices should be updated, pursuant to the Principles and Rules of the European Union — In that regard, it is argued that unforeseeable risk, which produces excessive hardship for one party, should lead to a renegotiation of the contract.
The situation of the Sars Cov 2 pandemic, and the war between the Ukrainian and Russian nations are clearly an unforeseeable risk.
Such situations have produced an extraordinary increase in the prices of materials, which Aitana ACS, SL should not bear exclusively. 3.
Third plea in law, alleging that the recognition of the right to a price review does not constitute breach of contract, nor does the principle of transparency and free competition. — In that regard, the applicant submits that the clause restricting price review does not include force majeure or unforeseeable risk.
The extension of contractual liability to cases of unforeseeable circumstances requires express acceptance, which has not been given.
The principles of transparency and free competition are not infringed by a price update, within the terms of Article 172 of Regulation 2018/1046.
(2)