26.1.2013

EN

Official Journal of the European Union

C 26/68

(Case T-527/12)

2013/C 26/133

Language of the case: Dutch

Parties

Applicant: DeMaCo Holland BV (Langedijk, Netherlands) (represented by: L. Linders and S. Bishop, lawyers)

Defendant: European Commission

Form of order sought

—Declare the applicant’s claim admissible and well-founded;

—consequently order Euratom to desist immediately from any use of the ‘redesign’ in respect of which the applicant has rights and, further, order Euratom to pay compensation to the applicant, provisionally estimated at EUR 100 000, on the basis of its non-contractual error;

—order Euratom to pay the costs incurred in the present proceedings.

Pleas in law and main arguments

By its claim the applicant seeks compensation for the damage suffered as a result of the non-contractual error of the European Atomic Energy Community, represented by the European Commission, inasmuch as it made use of technical drawings belonging to the applicant and transmitted those drawings for use in a public procurement procedure by the European Joint Undertaking for ITER and the Development of Fusion Energy (Fusion for Energy).

In support of its action the applicant claims that the defendant unlawfully made use of the applicant’s technical drawings.

The technical drawings created exclusively by the applicant — outside any contractual relationship between the parties — were used by the defendant without the applicant’s agreement. Furthermore, the defendant facilitated the use of the technical drawings by third parties, namely Fusion for Energy.

The knowingly unlawful use by the defendant of the applicant’s technical drawings constitutes unlawful conduct and infringes the applicant’s copyright.

The defendant has thus acquired an unauthorised economic advantage for itself on the basis of the applicant’s financial and intellectual efforts, which is contrary to fair commercial practice and fair competition.

The damage suffered consists of the applicant’s loss of profit as a result of Fusion for Energy’s call for tenders, which was made possible as a result of the defendant’s intervention, and remuneration for the disregard of the applicant’s intellectual property rights.