Case T-268/02: Action brought on 5 September 2002 by National Resource for Innovative Training Research and Employment Actions Limited (NRITEA) against the Commission of the European Communities
Date: 2002-11-23
Institutions: Court of First Instance
Subjects: European Social Fund, United Kingdom, access to information, action for annulment (EU), aid to disadvantaged groups, voluntary organisation

C 289/26

EN

Official Journal of the European Communities

23.11.2002

Pleas in law and main arguments

Applicant for the Com-
munity trade mark:

The applicant

Community trade mark
applied for:

The word/figurative mark ‘atlasre-
isen’
for goods in Classes 16,
36, 39, 41 and 42 (application
No 376210)

Proprietor of the oppos-
ing trade mark or sign:

Fritidsresor AB

Opposing trade mark or
sign:

The national Swedish word/figu-
rative mark ‘Atlas resor’ for ser-
vices in Class 39 (travel arrange-
ments and travel agencies)

Action brought on 5 September 2002 by National
Resource for Innovative Training Research and Employ-
ment Actions Limited (NRITEA) against the Commission
of the European Communities

(Case T-268/02)

(2002/C 289/50)

(Language of the case: English)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 5 September 2002 by National
Resource for Innovative Training Research and Employment
Actions Limited (NRITEA), Newcastle Upon Tyne (United
Kingdom), represented by Ms Alison Tate, Solicitor.

Decision of Opposition
Division:

Dismissal of application for Com-
munity trade mark for the services
‘arranging transport services by
water, land and air; arranging and
conducting travel by water, land
and air; arranging and providing
travel for tourists; providing tick-
ets; providing food and drink and
temporary
accommodation in
hotels and restaurants’ and admis-
sion of the registration for the
remaining goods and services

The applicant claims that the Court should:

— annul the decision of the Commission dated 23 May
2002 and the plaintiff be given a detailed analysis of each
and every dossier on which there is alleged to be a
problem and be allowed sufficient time to respond;

— in the alternative, annul the Decision of 23 May 2002
and a declaration be made that Article 23 of Regulation
(EEC) 4253/88 should apply in this instance rather than
Article 24.

Decision of Board of
Appeal:

Dismissal of applicant’s appeal

Pleas in law and main arguments

Pleas in law:

— Insufficient proof of genuine
use of the trade mark by the
opponent;

— Failure

to

comply with
Article 8(1) of Regulation
No 40/94 (1). The applicant
claims there is no likelihood
of confusion between the
trade marks.

( 1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).

The applicant is a voluntary organisation and a company
limited by guarantee that assists and monitors the provision of
training and development of underprivileged and deprived
individuals in the United Kingdom.
the
applicant worked together with The MARI Group Limited, a
commercial company, specialised in training.

In this respect,

to several detailed audits.
Both companies were subject
Following these audits and as a result of various irregularities
found in the execution of the projects, the Commission decided
to reduce the total assistance from the European Social Fund.
This Decision is contested by the applicant in the present case.

The applicant claims that the Commission has infringed an
essential procedural requirement in that it failed to provide the
applicant with the opportunity to defend itself. According to
the applicant, the Commission never provided directly to the
applicant sufficient details of the allegations raised.

23.11.2002

EN

Official Journal of the European Communities

C 289/27

The applicant furthermore invokes a violation of its right to a
fair trial. According to the applicant, there was no fair and
independent hearing in the matter. The applicant also invokes
a violation of the right of access to documents. In addition, the
Commission violated the principle of good administration by
not dealing with the matter within a reasonable time limit.

Finally, the applicant submits that the Commission has misused
its powers by implementing Article 24 of Regulation (EEC)
4253/88 (1). According to the applicant, Article 24 should
only be used in the event of impropriety. In the present case,
the Commission should have applied Article 23 of
the
regulation to recover the money overpaid as a result of
mistakes.

( 1) Regulation (EEC) No 4253/88 of 19 December 1988, laying down
provisions for implementing Regulation (EEC) No 2052/88 as
regards coordination of the activities of the different Structural
the
Funds between themselves and with the operations of
European Investment Bank and the other existing financial
instruments (OJ 1988 L 374, p. 1).

Action brought on 6 September 2002 by Ritek Corpor-
ation and Prodisc Technology Inc. against the Council of
the European Union

(Case T-274/02)

(2002/C 289/51)

(Language of the case: English)

An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 6 September 2002 by Ritek Corporation,
Hsin Chu Industrial Park, Taiwan R.O.C. and Prodisc Tech-
nology Inc., Taipei Hsien, Taiwan R.O.C, represented by Dr
Konstantinos Adamantopoulos, Barrister, with an address for
service in Luxembourg.

The applicant claims that the Court should:

— declare, pursuant to Article 230 and 231 of the Treaty,
that Council Regulation (EC) 1050/2002 of 13 June 2002
imposing a definitive anti-dumping duty and collecting
definitively the provisional duty imposed on imports of
recordable compact disks originating in Taiwan is null ad
void;

— order that the costs of and occasioned by these proceed-

ings be borne by the defendant.

Pleas in law and main arguments

The applicants are producers of CD-Rs established in Taiwan
and export CD-Rs to the Community. In February 2001, an
anti-dumping complaint was lodged before the Commission
by the Committee of European CD-R Manufacturers. Following
this complaint, the Commission initiated an investigation
regarding imports originating in Taiwan. Provisional anti-
dumping measures were imposed by Commission Regulation
2479/2001 (1). These measures were made definitive by
Council Regulation 1050/2002 (2). The applicants contest the
latter regulation with their present action.

The applicants allege infringement of Articles 2(10) and 2(11)
of Regulation 384/96 on protection against dumped imports
from countries not members of the European Community (3).
According to the applicants, the Council committed a manifest
error in the assessment of the facts and of law by finding that
the applicants engaged in ‘targeted dumping’ practices and
allowed use of the average-to-transaction methodology in the
calculation of the dumping margin of the applicants.

According to the applicants, no exceptional treatment of
certain transactions to certain customers, in certain regions or
in certain time periods, i.e. no targeted dumping, took place
during the investigation period. The applicants submit that
export and domestic price patterns were almost identical and
that
In these
circumstances, there was, according to the applicants, no
place for disguising the effects of dumping through targeted
dumping.

the prices for CD-Rs declined worldwide.

The applicants furthermore claim that by using the average-to-
transaction methodology which refers to constructed normal
the Commission failed to address the purpose of
values,
targeted dumping, which is to conceal dumping by charging
different export prices. According to the applicants,
the
Commission should refer to actual prices when investigating
targeted dumping.

Secondly, the applicants allege infringement of Article 2 of
Regulation 384/96. The applicant claims that the Council
made a manifest error of assessment of the facts in calculating
the dumping margin of the applicants by using the ‘zeroing