CELEX: C2003/184/108
Language: en
Date: 2003-08-02 00:00:00
Title: Case T-197/03: Action brought on 30 May 2003 by Proras S.r.l. Engineering and Contracting against Commission of the European Communities

2.8.2003               EN                           Official Journal of the European Union                                          C 184/51
—     An alleged infringement of the EC Treaty and of                       European Communities on 30 May 2003 by Proras S.r.l.
      secondary Community legislation in that the contested                 Engineering and Contracting, represented by Gian Michele
      measure actually infringes Article 95(3) and Directive 76/            Roberti, Alessandro Maria Lerro, Marco Simone Mariani, Paolo
      768/EEC which require Community harmonisation                         Ziotti and Isabella Perego, lawyers.
      measures to be based on a ‘high level of protection’ of
      health, safety, environment and consumers.
                                                                            The applicant claims that the Court should:
—     The applicant also advances a manifest error of assess-
      ment in that the contested measure allegedly fails to take
      account of scientific assessments made by the Community               —     annul the decision of the European Commission
      advisory bodies.                                                            contained in the letter of 19 March 2003 from Mr P.B.
                                                                                  Knudsen, Director of Directorate A — Office of Coopera-
                                                                                  tion, EuropeAid, D(2003) D/8511, ‘Proras exclusion from
In support of its application to annul the provisions relating to                 participation in a TACIS procurement procedure’;
the prohibition of carcinogenic and similar substances, the
applicant advances the following grounds:
                                                                            —     find the Commission liable in damages for having
—     An alleged manifest error of assessment and inconsistency                   adopted the abovementioned decision;
      with Directive 76/768/EEC. According to the applicant the
      contested measure is inconsistent with the risk-based
      approach in the latter Directive.                                     —     order the defendant to make good the injury suffered by
                                                                                  the applicant as a result of that damage, quantified at
                                                                                  EUR 1 177 638,24 and further order the publication of
—     An alleged infringement of an essential procedural                          any judgment to that effect;
      requirement, in that the prohibition should have been
      made subject to the prior consultation and positive
      opinion of the Scientific Committee on Cosmetic Products              —     order the Commission to pay the costs.
      and Non Food Products intended for Consumers, in
      accordance with Article 8(2) of Directive 76/768/EEC.
—     An alleged infringement Article 95(3) of the EC Treaty
      and the rules adopted for its application,
                                                                            Pleas in law and main arguments
Further, the applicant alleges that both contested provisions
infringe superior principles of Community law, namely the
principles of proportionality, legal certainty and legitimate
expectations, the precautionary principle, the principle of                 By the present action, Proras S.r.l. Engineering and Contracting
consistency, the principle of equal treatment and the need to               (hereinafter ‘Proras’ or ‘the applicant’) is challenging the deci-
consider the balance of interests.                                          sion of the Commission contained in the letter of 19 March
                                                                            2003 from Mr P.B. Knudsen, Director of Directorate A —
                                                                            Office of Cooperation, EuropeAid, D(2003) D/8511, ‘Proras
(1) OJ L 66, 11.3.2003, p. 26-35.                                           exclusion from participation in a TACIS procurement proce-
(2) OJ L 262, 27.9.1976, p. 169-200.                                        dure’ by which it imposes, on the basis of Article 93(c) and (f)
                                                                            in conjunction with Article 96 of Regulation No 1605/
                                                                            2002, (1) a sanction consisting in exclusion for two years
                                                                            from tender procedures organised in the context of external
                                                                            actions funded by the Commission in the framework of the
                                                                            TACIS programme and, pursuant to Articles 235 and 288 EC,
                                                                            compensation for the damage suffered as a result of that
                                                                            decision. That decision was adopted after a procedure which
                                                                            contained a number of irregularities, denied by the applicant,
Action brought on 30 May 2003 by Proras S.r.l. Engi-                        which, according to the defendant, were committed in the
neering and Contracting against Commission of the                           course of tender procedure SCR — E/110983/D/S/NI,
                      European Communities                                  published by the unit ‘Programma de apoyo al Sector Educa-
                                                                            tivo en Nicaragua’ and financed under the ‘ALA’ programme.
                          (Case T-197/03)
                                                                            In support of its action for annulment, Proras puts forward
                         (2003/C 184/108)                                   four pleas in law. First, the applicant claims that the EuropeAid
                                                                            department, by adopting as a legal basis for the contested
                                                                            decision a provision — such as Regulation No 1605/2002 —
                    (Language of the case: Italian)                         which had not entered into force at the material time, has
                                                                            infringed the principles of retroactivity, lawfulness of sanctions
                                                                            and legitimate expectations. So far as concerns procedure, the
                                                                            applicant criticises the aforementioned department for failing
An action against the Commission of the European Commu-                     to inform it of the steps it intended to take in terms of the
nities was brought before the Court of First Instance of the                sanctions it proposed to impose on it or, at the very least,
 ---pagebreak--- C 184/52               EN                            Official Journal of the European Union                                             2.8.2003
giving it the opportunity to be heard, contrary to the rights of             Community       trade    mark     Figurative trade mark ‘COMP
defence and the principle of sound administration. As to                     sought:                           USA’      —     Application    no
substance, the applicant alleges, first misapplication of                                                      2 133 202 for goods in
Article 93(c) and (f) of Regulation No 1605/03 and, secondly,                                                  Classes 9 and 37 (items related
infringement of Article 96 of that regulation and of the                                                       to computers)
principle of proportionality in determining the level of sanc-
tions. The applicant further alleges a defective statement of
reasons in respect of the latter claims.
                                                                             Proprietor of mark or sign        The applicant
The applicant thus seeks compensation for the damage caused                  cited in the opposition pro-
by the sanctions unlawfully imposed by the contested decision;               ceedings:
such damage is not only economic in nature but is also
detrimental to the image and reputation of the company.
(1) Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002            Mark or sign cited in op-         The figurative English trade
    on the Financial Regulation applicable to the general budget of the      position:                         mark ‘COMP USA’ for goods in
    European Communities (OJ 2002 L 248, p. 1).                                                                Class 39 (transport)
                                                                             Decision of the Opposition        Rejection of the opposition
                                                                             Division:
Action brought on 2 June 2003 by Alecansan, S.L. against
the Office for Harmonisation in the Internal Market
              (Trade Marks and Designs) (OHIM)                               Decision of the Board of          Dismissal of the appeal
                                                                             Appeal:
                          (Case T-202/03)
                         (2003/C 184/109)
                                                                             Pleas in law:                     Misapplication of Article 8(1)(b)
                                                                                                               of Regulation (EC) No 40/94
                    (Language of the case: Spanish)
                                                                                                               (likelihood of confusion)
An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM) was brought before
the Court of First Instance of the European Communities on
2 June 2003 by Alecansan, S.L., with its registered office in
                                                                             Action brought on 11 June 2003 by Nicolas Georgio-
Madrid, represented by María Baylos Morales, Pedro Merino
                                                                             poulos and Others against the Commission of the
Baylos and Jesús Arribas García, lawyers at the Madrid Bar.
                                                                                                   European Communities
The applicant claims that the Court should:                                                            (Case T-205/03)
—     annul the decision of the First Board of Appeal of OHIM                                         (2003/C 184/110)
      of 24 March 2003 in Case R 711/2002-1;
                                                                                                 (Language of the case: French)
—     annul the decision of OHIM's Opposition Division of
      17 June 2002;
                                                                             An action against the Commission of the European Commu-
—     declare the mark claimed and the applicant's trade mark                nities was brought before the Court of First Instance of the
      with priority incompatible pursuant to Article 8(1)(b) of              European Communities on 11 June 2003 by Nicolas Georgio-
      Regulation No 40/94 on the Community trade mark;                       poulos, residing in Brussels, and 4 other officials, represented
                                                                             by G. Bounéou and F. Frabetti, lawyers, with an address for
—     refuse registration of the Community trade mark ‘COMP                  service in Luxembourg.
      USA’, no 849 497, for Classes 9 and 37; and
                                                                             The applicants claim that the Court should:
—     order the defendant, and the intervener if he intervenes in            —     annul the decision of the competent hierarchical authority
      the action for annulment, to pay the costs.                                  changing, with effect from a year not further specified
                                                                                   (1993, 1996, 1997, or another year, and for the period
                                                                                   during which the applicants were officials of the Commis-
                                                                                   sion of the European Communities), the procedure for
Pleas in law and main arguments                                                    calculating the annual expense of travelling to Greece in
                                                                                   respect of the journey via Brindisi, as taken into consid-
Applicant for Community           CompUSA Management Com-                          eration for destinations in the Pelopponese;
trade mark:                       pany                                             or, in the alternative,