CELEX: C2003/289/71
Language: en
Date: 2003-11-29 00:00:00
Title: Case T-341/03: Action brought on 3 October 2003 by El Corte Inglés S.A. against the Office for Harmonisation in the Internal Market (OHIM)

29.11.2003              EN                         Official Journal of the European Union                                         C 289/35
The applicant claims that the Court should:                                     —     applied an erroneous test on the coverage of costs
                                                                                      in place of the only relevant test, which showed that
                                                                                      the full costs connected with the services concerned
—     annul the Commission’s decision of 16 July 2003,                                were covered for the whole of the period referred to
      imposing a fine of 10,35 million euros on the applicant;                        in the decision;
—     in the alternative, withdraw the fine or reduce its amount;               —     refused the applicant the right to align its prices on
                                                                                      those charged by its competitors;
—     order the Commission to pay the costs.
                                                                                —     committed a serious error of law, exacerbated by
                                                                                      obvious errors of assessment, in implementing the
                                                                                      test for predatory pricing that it used, particularly
                                                                                      by failing to take account of the highly competitive
Pleas in law and main arguments                                                       market context;
                                                                                —     concluded that a predatory pricing plan existed
The applicant, a French limited liability company 99 %-owned                          without adducing the necessary evidence.
by Wanadoo S.A., which is in turn owned as to 70,6 %
by France Telecom, challenges the Commission’s decision
accusing it of infringing Article 82 of the Treaty by charging             In the alternative, the applicant claims that the fine should be
predatory prices for its Pack eXtense and Wanadoo ADSL                     annulled, or very substantially reduced.
services which did not allow it to cover its variable costs from
March to August 2001 or its full costs from August 2001 until
15 October 2002, as part of plan aimed at pre-empting the
market for high-output internet access services. On that
basis, the Commission imposed a fine on the applicant of
10,35 million euros.
In support of its claims, the applicant argues:                            Action brought on 3 October 2003 by El Corte Inglés S.A.
                                                                           against the Office for Harmonisation in the Internal
—     Infringement of essential procedural requirements, and in                                     Market (OHIM)
      particular of its defence rights, in that the Commission:
                                                                                                    (Case T-341/03)
      —     infringed the principle that violations are to be
            attributed to the offender only, in that it held against
            the applicant matters which it imputes to the ‘France                                   (2003/C 289/71)
            Telecom Group’ and on which neither the applicant
            nor France Telecom were in a position to submit
            observations. In that respect, the applicant insists                             (Language of the case: Spanish)
            that France Telecom and the applicant itself are two
            distinct legal persons;
      —     failed to communicate its final test on the coverage           An action against the Office for Harmonisation in the Internal
            of costs in a statement of objections, and, in its             Market (OHIM) was brought before the Court of First Instance
            decision, determined a duration of the infringement            of the European Communities on 3 October 2003 by El Corte
            longer than that mentioned in the statement of                 Inglés S.A, having its registered office in Madrid, represented
            objections;                                                    by Juan Luis Rivas Zurdo and Emilio López Leiva, lawyers.
      —     gave no reason for abandoning the principle of
            alignment of prices laid down by the Community                 The applicant claims that the Court should:
            case-law.
                                                                           —    set aside the decision of the First Board of Appeal of
—     Infringement of Article 82 of the EC Treaty, in that the                  OHMI of 9 July 2003 in Case R 0565/2002-1;
      Commission:
                                                                           —    refuse to register as a Comunity mark No 488.999
      —     gave an incorrect definition of the market, on which                DAVID LLOYD in Class 25, and
            the applicant had in any case never held a dominant
            position;                                                      —    order the other party or parties to pay the costs.
 ---pagebreak--- C 289/36              EN                          Official Journal of the European Union                                       29.11.2003
Pleas in law and main arguments                                           —     order the Commission (Enterprise Directorate General) to
                                                                                re-evaluate the tender submitted by European Dynamics;
Applicant for the Com-       Whitbread PLC.
munity mark:                                                              —     order the Commission to pay European Dynamics’ legal
                                                                                and other fees and expenses incurred in connection with
Community mark for           Figurative mark ‘David Lloyd’ —                    this Application.
which application was        Application No 488.999 for
made:                        products in Classes 3, 5, 25, 28,
                             36, 41 and 42.
Holder of the mark or        Applicant                                    Pleas in law and main arguments
sign bringing the oppo-
sition proceedings:
Opposing mark or sign:       No 807.974/9 and No 278.853                  The object of the present case is the annulment of the Decision
                             ‘LLOYD’S’, for goods in Class 25             of the European Commission to reject the applicants bid, filed
                             (clothing and general accessories)           in response to the Call of Tender ENTR/02/055 — CORDIS
                                                                          for the ‘Development and Provision of Services in support of
                                                                          the Community R&D Information Service (CORDIS)’ Lot 2
Decision of the Oppo-        Opposition rejected
                                                                          ‘Development’ (OJ 2002/S 225-178776). This Decision con-
sition Division:
                                                                          cluded that the TRASYS/Intrasoft International Consortium
                                                                          bid was superior to that of the applicant.
Decision of the Board of     Appeal dismissed
Appeal:
Reasons relied on:           Incorrect         application       of       CORDIS, the European Commission’s research and develop-
                             Article 8(1)(b) (likelihood of con-          ment information service, is an informatics tool offering
                             fusion), 8(2)(c) (well known earlier         practical information on the European research programs and
                             mark) and 8(5) Regulation (EC)               funding opportunities, facilitating research results take up
                             No 40/94                                     and and technology transfers, hosting services on European
                                                                          innovation, covering all research and innovation related news
                                                                          developments and providing a central access to European and
                                                                          National contact points
                                                                          In support of its conclusions, the applicant submits that:
Action brought on 30 September 2003 by European
Dynamics S.A. against the Commission of the European                      —     The violation of the principles of transparency and non-
                         Communities                                            discrimination, in as much as the provisions on non-
                                                                                paid running-in periods seriously restrict competition by
                                                                                favouring the incumbent contractor since it has been
                        (Case T-345/03)                                         given major financial advantages by the contracting
                                                                                authority unilateral, which allowed it to submit an offer
                                                                                significantly cheaper that any other competitor. Besides,
                        (2003/C 289/72)                                         the time-limit for providing information about the role
                                                                                of Autonomy in CORDIS (Enterprise Directorate General
                  (Language of the case: English)                               addresses such information just four weeks before the
                                                                                tender submission deadline) has given a big advantage to
                                                                                the TRASYS/Intrasoft consortium in relation to other
                                                                                Lot 2 tenderers. Additionally, ensuring the call for tender
                                                                                procedure, all bidders -except the incumbent contractor
An action against the Commission of the European Communi-                       — were prevented from having access to a number of
ties was brought before the Court of First Instance of the                      highly critical technical information on the actual status
European Communities on 30 September 2003 by European                           of the CORDIS projects and particularly on the CORDIS
Dynamics S.A., Athens, (Greece), represented by S. Pappas,                      DATABASE SERVICE. Moreover, the Commission
lawyer.                                                                         declined to communicate to all tenderers significant and
                                                                                useful details on the HW/SW, scripts, technology and
                                                                                processes currently in use for operating the CORDIS
The applicant claims that the Court should:                                     database services, while, at the same time, it asked
                                                                                the tenderers to specify what part of that ‘unknown’
—     annul the Commission’s (Enterprise Directorate General)                   equipment is to be taken over, whilst all this information
      decision to evaluate European Dynamics’ tender as not                     was fully available to TRASYS/Intrasoft right from the
      successful;                                                               beginning.