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30.4.

2005 EN Official Journal of the European Union C 106/27

Action brought on 31 January 2005 by Reckitt Benckiser Action brought on 28 January 2005 by European
N.V. against the Office for Harmonisation in the Internal Dynamics SA against the Commission of the European
Market (Trade Marks and Designs) Communities

(Case T-49/05)
(Case T-50/05)
(2005/C 106/59)

(2005/C 106/60)
(Language of the case: English)

(Language of the case: English)


An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on 31
January 2005 by Reckitt Benckiser N.V., established in Hoofd-
dorp (the Netherlands) represented by G.S.P. Vos, lawyer.
An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
The applicant claims that the Court should:
European Communities on 28 January 2005 by European
Dynamics SA, established in Athens (Greece), represented by N.
— annul the decision adopted on 11 November 2004 by the Korogiannakis, lawyer.
Second Board of Appeal of the Office for Harmonisation in
the Internal Market (Trade Marks and Designs);
The applicant claims that the Court should:
— allow registration of the Community trade mark
2 792 554;
— annul the decision of the Commission (DG TAXUD), to
— order the Office for Harmonisation in the Internal Market evaluate the applicant's bid as not successful and award the
to pay the costs. contract to the successful contractor;

— order the Commission to pay the applicant's legal costs and


Pleas in law and main arguments other costs and expenses incurred in connection with the
application, even if the application is rejected.

Community trade mark A three-dimensional mark


concerned: consisting of the shape of the
product being a rectangular tablet
consisting of a blue top layer with Pleas in law and main arguments
red speckles and in it a sunken
shining mother of pearl ball and a
lower white layer with green The applicant company filed a bid in response to the Commis-
speckles, for goods in class 1 sion's call for tenders TAXUD/2004/AO-004 for the specifica-
(water softeners etc.) and 3 tion, development, maintenance and support of telematic
(laundry preparations etc.) systems to control the movements of products subject to excise
duty within the European Community. By the contested deci-
Decision of the exam- Refusal of registration sion this bid was rejected and the contract awarded to another
iner: bidder.

Decision of the Board Dismissal of the appeal


of Appeal: In support of its application for annulment of that decision the
applicant claims first of all that the Commission violated the
Pleas in law: Misapplication of Article 7(1)(b) of principle of non-discrimination and of free competition. The
Regulation (EC) No 40/94 (1) unavailability of exact specifications for the EMCS system
prevented tenderers from presenting their expertise in a
Misapplication of Article 7(1)(c) of targeted manner in the specific areas that were important for
Regulation (EC) No 40/94 the project. The access to privileged information by the
previous and current contractors constituted a major and exclu-
sive advantage for them. The applicant claims that its timely
(1) Council Regulation (EC) No 40/94 of 20.12.1993 on the Com- request for equal access rights to such applications and docu-
munity trade mark (OJ L 11, p. 1). mentation should have been accepted. According to the appli-
cant, even though the Commission had the opportunity to
remedy this situation it did not take appropriate measures to
do so.
C 106/28 EN Official Journal of the European Union 30.4.2005

The applicant further submits that the Commission violated European Communities on 8 February 2005 by Ireland repre-
Article 97(1) of the Financial Regulation (1) as well as Article sented by D.J. -O'Hagan, agent, assisted by P. Gallagher and P.
17(1) of Directive 92/50 (2) by using evaluation criteria that McGarry, Barristers, and with an address for service in Luxem-
were extremely vague and were not accompanied by clear bourg.
quantifiable parameters.

The applicant claims that the Court should:


The applicant further considers that the Commission
committed manifest errors of appreciation in its evaluation of
the applicant's tender. In this respect the applicant contends
that any deficiencies of its bid were due to the Commission's
failure to communicate critical elements required by the appli- — annul (in whole or in part) Commission Decision C (2004)
cant in order to prepare its bid. The applicant further contests 4447 of 29 November 2004 reducing the assistance from
each of the statements contained in the report of the Evaluation the cohesion fund to project 96/07/61/007 (Dublin Region
Committee. Water Supply Scheme — Stage 3), granted by the Commis-
sion Decision C(97) 4090 of 15 December 1997 and redu-
cing the assistance from the cohesion fund to Project No.
95/07/65/007, (N1 Dunleer — Dundalk Road Stage 2)
granted by the Commission Decision C (96) 2113 of 29
The applicant also invokes a violation, by the Commission, of July 1996 in respect of such period or amounts as the
its obligation, under Article 253 EC, to state reasons and a Court should determine;
failure to provide pertinent information requested by the appli-
cant on the grounds for the rejection of its bid. The applicant
also submits that the Commission violated the principle of
good administration and diligence by acting with significant
delay and by not offering adequate answers to the applicant's — order the Commission to bear the costs of these proceed-
requests for information prior to the submission of the bids. ings.

(1) Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002


on the Financial Regulation applicable to the general budget of the
European Communities, OJ L 248, 16/09/2002 p. 1.
(2) Council Directive 92/50/EEC of 18 June 1992 relating to the coor-
dination of procedures for the award of public service contracts, OJ
L 209, 24/07/1992 p. 1.
Pleas in law and main arguments

By virtue of Commission Decision C(97) 4090 of 15 December


1997, assistance was granted from the Cohesion Fund to
Project 96/07/61/007 (Dublin Region Water Supply Scheme —
Action brought on 8 February 2005 by Ireland against the Stage III) in Ireland. By Commission Decision C (96) 2113 of
Commission of the European Communities 29 July 1996 assistance was granted from the Cohesion Fund
to Project No. 95/07/65/007, (N1 Dunleer — Dundalk Road
Stage II), also in Ireland. By the contested decision the Commis-
sion reduced the amounts of total assistance granted under the
two previous decisions, invoking various irregularities found
(Case T-56/05) during the examination of the projects concerned. The
Commission also decided that a total amount of EUR 797 886
had been unduly received and should be recovered by reimbur-
sement.
(2005/C 106/61)

(Language of the case: English)


In support of its application to annul the contested decision the
applicant submits first of all that the contested decision is
invalid, having been adopted more than three months after the
date of the oral hearing, in violation of Article 18(3) Regulation
1386/2002 (1) and Article H(2) of Annex II to Regulation
1164/94 (2). According to the applicant this constitutes a
An action against the Commission of the European Commu- breach of an essential procedural requirement as well as an
nities was brought before the Court of First Instance of the infringement of the principle of legal certainty.