CELEX: C2003/019/73
Language: en
Date: 2003-01-25 00:00:00
Title: Case T-343/02: Action brought on 15 November 2002 by Roland Schintgen against Commission of the European Communities

C 19/38               EN                      Official Journal of the European Communities                                       25.1.2003
Pleas in law and main arguments                                                                           —   Violation of Articles 42 and
                                                                                                              8 of Regulation 40/94.
                                                                                                              According to the applicant,
                                                                                                              an opposition can be based
                                                                                                              on an earlier community tra-
Applicant for the Com-       Moser Grupo Media, S.L.
                                                                                                              de mark application that is
munity trade mark:
                                                                                                              not yet registered as a trade
                                                                                                              mark.
The Community trade          The figurative trade mark ‘Moser
mark concerned:              Grupo Media, s.l.’ for goods and            (1 ) Council Regulation (EC) No 40/94 of 20 December 1993 on the
                             services in classes 9, 16, 38, 39                Community trade mark (OJ 11, p. 1).
                             and 41 (application no 409664)
Proprietor of the right to   The applicant, Metro-Goldwin-
the trade mark or sign       Mayer Lion Corporation
asserted by way of oppo-
sition in the opposition
proceedings:                                                             Action brought on 15 November 2002 by Roland Schint-
                                                                           gen against Commission of the European Communities
Trade mark or sign           Several national rights and com-
                                                                                                   (Case T-343/02)
asserted by way of oppo-     munity trade mark application
sition in the opposition     no 141820 of the word mark
proceedings:                 ‘MGM’ for goods and services in                                        (2003/C 19/73)
                             classes 9, 38 and 41
                                                                                             (Language of the case: French)
Decision of the Oppo-        Rejection of the community trade
sition Division:             mark application no 409664 of
                             Moser Grupo Media, disregarding
                             some of the earlier rights and              An action against the Commission of the European Communi-
                             community trade mark appli-                 ties was brought before the Court of First Instance of the
                             cation no 141820 by the applicant           European Communities on 15 November 2002 by Roland
                             in the present case for the word            Schintgen, residing in Keispelt (Luxembourg), represented by
                             mark ‘MGM’                                  Lucas Vogel, lawyer.
Decision of the Board of     Rejection of the appeal by the              The applicant claims that the Court should:
Appeal:                      opponent, applicant in the pre-
                             sent case, as inadmissible                  —     annul the decision adopted by the appointing authority
                                                                               on 16 July 2002 rejecting the complaint lodged by the
                                                                               applicant on 28 February 2002 requesting the annulment
                                                                               of the elections to the local staff committee, the appoint-
Grounds of claim:            —    Infringement of Article 58 of
                                                                               ment of the elected members to the staff committee and
                                  Regulation 40/94 (1)in so far
                                                                               the refusal by the Commission to annul the aforemen-
                                  as the applicant is adversely
                                                                               tioned elections and declare that the local staff committee
                                  affected by the decision of
                                                                               in Luxembourg, formed following the said elections, was
                                  the Opposition Division.
                                                                               not validly constituted;
                                  According to the applicant,
                                  it is still possible for Moser
                                  Grupo Media to convert its             —     annul, in so far as necessary, the abovementioned elec-
                                  community trade mark                         tions to the local staff committee in Luxembourg, together
                                  application         in     other             with the appointment of the elected members consequent
                                  countries with the advantage                 thereupon and annul the refusal by the Commission to
                                  of using the date of its Com-                annul the elections and declare unlawful the composition
                                  munity trade mark appli-                     of the local staff committee in Luxembourg which
                                  cation. This would not have                  resulted therefrom;
                                  been possible if the trade
                                  mark application had been              —     order the defendant to pay the costs of proceedings and
                                  rejected on the grounds of                   the expenses necessarily incurred for the purpose of the
                                  the applicant’s Community                    proceedings, in particular the travel and subsistence
                                  trade mark application.                      expenses and the remuneration of lawyers.
 ---pagebreak--- 25.1.2003             EN                      Official Journal of the European Communities                                        C 19/39
Pleas in law and main arguments                                          The applicant claims that the Court should:
By his application, the applicant seeks the annulment of the             1.     annul the Commission’s (EUROSTAT) decision to elimin-
decision of the appointing authority rejecting his complaint                    ate European Dynamics from the procurement procedure
requesting the annulment of the elections to the local staff                    for the Call for Tenders 2002/S 106-083279 - Lot 1 for
committee in Luxembourg of November 2001.                                       the ‘Further development of the Collaborative Software
                                                                                CIRCA’;
According to the applicant, the list put forward by the                  2.     order the Commission (EUROSTAT) to evaluate the
‘Solidarité Européenne’ union obtained only one of the 20                       tender submitted by European Dynamics in the above
seats to be filled on the local staff committee, whereas the                    mentioned procurement procedure and allow European
number of votes for the members of that union constituted                       Dynamics to participate fully and on the same basis as all
25,523 % of the total votes cast.                                               the other tenderers;
In support of his arguments, the applicant alleges:                      3.     order the Commission to pay European Dynamics’ legal
                                                                                and other fees and expenses incurred in connection with
—     infringement of Article 9(3) of the Staff Regulations,                    this application.
—     infringement of Article 1 of Annex II to the Staff
      Regulations,
—     infringement of Article 6 of the rules on the composition          Pleas in law and main arguments
      and functioning of the staff committee,
—     manifest error of assessment.
                                                                         The applicant is a company involved in the area of information
                                                                         technology and communications. It participated in the Call for
                                                                         Tenders 2002/S 106 -083279, for ‘Eurostat information
The applicant claims that the abovementioned provisions                  systems: information and communication technologies for the
require a faithful representation, on the local staff committee,         Community statistical system’ and, more particularly, Lot 1 of
of all the tendencies expressed through the ballot box. Such             the Call for Tenders, ‘further development of the collaborative
representation is not sufficiently guaranteed where more than            software CIRCA’. The applicant’s tender was rejected by the
a quarter of the total votes cast by officials results in the            defendant because of the absence of details concerning the
appointment of only 1/20th of the members of the staff                   educational and professional qualifications in the curriculum
committee.                                                               vitae of at least one of the experts, in a team of 27 persons.
                                                                         In support of its application, the applicant submits that
                                                                         the decision to reject its tender breaches the principle of
                                                                         proportionality. The tender was rejected because of the
                                                                         absence of details in one curriculum vitae, whereas the tender
Action brought on 21 November 2002 by European                           requirements referred in broad and general terms to the
Dynamics against the Commission of the European Com-                     experience of the team, without any further specification.
                            munities
                        (Case T-345/02)                                  The applicant furthermore alleges that the contested decision
                                                                         is vitiated by a manifest error of assessment. According to the
                                                                         applicant, the defendant failed to exercise its power to seek
                        (2003/C 19/74)                                   clarification on this matter and therefore breached its duty of
                                                                         care and the principle of good administration.
                  (Language of the case: English)
                                                                         The applicant also claims that by not seeking clarification and
                                                                         thereby eliminating the applicant’s tender, the defendant did
An action against the Commission of the European Communi-                not respect the equal treatment of tenderers. According to
ties was brought before the Court of First Instance of the               the applicant, an evaluation committee does not enjoy an
European Communities on 21 November 2002 by European                     unfettered discretion to seek or not to seek clarification
Dynamics (Athens), represented by W. Knapp, Rechtsanwalt,                concerning an individual tender regardless of objective con-
and D. Spanou, Advocate.                                                 siderations and free from judicial supervision.