Case T-174/04: Action brought on 6 May 2004 by Petrotub S.A., against the Council of the European Union
Date: 2004-07-10
Institutions: Court of First Instance
Subjects: Council of the European Union, Romania, action for annulment (EU), anti-dumping duty, import, originating product, piping, tube

C 179/16

EN

Official Journal of the European Union

10.7.2004

— register the Community trade mark No 1.694.157 ‘emergia’
(figurative mark)
to designate ‘telecommunications by
networks of undersea cables for the electronic transmission
of voice, data and video communications’ in class 38 of the
International Classification; and

— order the Office for Harmonisation in the Internal Market
and any party entering an appearance as intervener to pay
the costs.

Pleas in law and main arguments:

Applicant
munity trade mark:

for

Com-

Community trade mark
sought:

Proprietor of mark or
sign cited in the opposi-
tion proceedings:

Mark or sign cited in
opposition.

The applicant.

Figurative mark ‘emergia’– applica-
tion No 1.694.157 for products
and services in Classes 9, 38 and
42.

D. Branch.

word

products

for
including,
transmission

mark
Community
and
‘EMERGEA’
in class 38,
services
service
by
‘data
national
international
networks and communications by
computer terminals’.

and

residing at Brussels, represented by N. Lhoëst, lawyer, with an
address for service in Luxembourg.

The applicant claims that the Court should:

— Annul the decision of the Director General of DG ADMIN
of 21 May 2003 which confirms, without amendment, the
applicant's career development review for the period from
1 July 2001 to 31 December 2002;

— Annul, so far as necessary, the Commission's Decision of
23 December 2003, rejecting the applicant's complaint;

— Order the defendant to pay all the costs of the proceedings.

Pleas in law and main arguments:

In support of his action, the applicant pleads the illegality of
the new appraisal system based on non-objective criteria which
do not enable the subject to ascertain, in sufficient time, the
contents of his appraisal report in order to be able, if appro-
priate, to submit observations to the appraiser.

The applicant also pleads infringement of the duty to state
reasons, in that the significant decline in the appraisal of his
merits was not properly explained, and a manifest error of
assessment.

Decision of the Opposi-
tion Division:

Opposition upheld in part in so
far as the opposition concerned
‘tele-communications, communica-
tions by computer networks’
in
class 38.

Decision of
of Appeal:

Pleas in law:

the Board

Appeal dismissed.

Article 8(1)(b) of Regulation No
40/94 (likelihood of confusion)
wrongly applied.

Action brought on 14 May 2004 by Jürgen Carius against
Commission of the European Communities

(Case T-173/04)

(2004/C 179/31)

(Language of the case: French)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 14 May 2004 by Jürgen Carius,

Action brought on 6 May 2004 by Petrotub S.A., against
the Council of the European Union

(Case T-174/04)

(2004/C 179/32)

(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 May 2004 by Petrotub S.A., Roman,
Romania, represented by Mr A.L. Merckx,
lawyer, with an
address for service in Luxembourg.

The applicant claims that the Court should:

— Annul Article 1 of Council Regulation (EC) No 235/2004
of 10 February 2004 amending Regulation (EC) No
2320/97 imposing definitive
anti-dumping duties on
imports of certain seamless pipes and tubes of iron or non-
alloy steel originating in, inter alia, Romania in so far as it
concerns
into the European Community of
products manufactured by Petrotub S.A. and Republica
S.A (1).

imports

— order the defendant to pay the costs

10.7.2004

EN

Official Journal of the European Union

C 179/17

Pleas in law and main arguments:

The contested regulation was adopted by the Council
in an
effort to comply with the judgment of the Court of Justice of
the European Communities of 9 January 2003 in case C-76/00
P. This judgment set aside the judgment of the Court of First
Instance of 15 December 1999 in Joined Cases T-33/98 and T-
34/98 Petrotub and Republica v. Council (2) and annulled
Council Regulation (EC) No. 2320/1997 of 17 November 1997
imposing definitive anti-dumping duties on imports of certain
seamless pipes and tubes of iron or non-alloy steel in so far as
it concerned Petrotub S.A. and Republica S.A.

In support of its application the applicant submits that the
Council has exceeded its discretionary power under Article 233
EC by implementing the judgment in a way that infringes Arti-
cles 6 paragraphs 1 and 9 and 2 paragraph 11 of Regulation
(EC) No 384/96 (3). More particularly, the applicant contends
that Article 6 paragraph 9 was infringed since the contested
regulation was adopted on the basis of the initial investigation
even though more than 15 months had elapsed since its initia-
tion. Further, Article 6 paragraph 1 was infringed in that the
anti-dumping measures adopted were no longer based on infor-
mation relating to a period of at least six months immediately
to the initiation of proceedings. The applicant also
prior
the contested regulation does not contain
contends
adequate motivation as to why the first two methods of calcula-
tion of the dumping margin, provided for in Article 2 para-
graph 11 of Regulation No 384/96, were rejected in favour of
the third method. On this basis the applicant claims that the
contested regulation also infringed Article 2 paragraph 11 of
Regulation No 384/1996 as well as Article 253 EC.

that

(1) OJ L 40, 12.2.2004, p. 12.
(2) [1999] ECR-II 3837.
(3) OJ L 56 , 6.3.1996, p. 1.

Action brought on 7 May 2004 by Mr Donal Gordon
against the Commission of the European Communities

(Case T-175/04)

(2004/C 179/33)

(Language of the case: English)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 7 May 2004 by Mr Donal Gordon,
Brussels, Belguim, represented by Mr M. Byrne, Solicitor.

The applicant claims that the Court should:

— annul the appointing authority's Decision in response to

the applicant's complaint R/402/03;

— declare the Commission Decision of 26 April 2002 on
general provisions for implementing Article 43 of the Staff
regulations or the relevant current measure invalid to the
extent that reports are finalised before all appeals of the
same grade in the same unit have been processed;

— declare Administrative Notice 99-2002 of 3 December
2002 or the relevant current measure invalid to the extent
that it sets a target average mark;

— award the applicant damages in compensation for the mate-
rial damage to his career prospects, to his morale and to his
health;

— order the Commission to pay all the costs of the present

action.

Pleas in law and main arguments:

In support of his conclusions, the applicant submits in the first
place a breach of an essential procedural requirement and the
rights of defence in that the countersigning officer failed to
have a dialogue with the official within 5 working days as
required by Article 7(5) of Commission Decision of 26 April
2002 on general provisions for implementing Article 43 of the
Staff Regulations.

The applicant also invokes a manifest error of assessment by
the countersigning officer in signing the applicant's career
development report, having regard to the anomalous and
contradictory data available to him. The applicant furthermore
invokes a misuse of powers because of his failing to take any
steps to correct such manifest error of assessment.

The applicant finally invokes a breach of an essential proce-
dural requirement and the rights of defence in that the internal
appeal system set in place by Commission Decision of 26 April
2002 was rendered inherently ineffective by the fact that by
the time an appeal was launched, the other reports in the same
unit, to which the appealed report was linked by an average
mark, had been irrevocably validated, and by the limited
number of points set aside to cover appeals.

Action brought on 13 May 2004 by Luigi Marcuccio
against Commission of the European Communities

(Case T-176/04)

(2004/C 179/34)

(Language of the case: Italian)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 13 May 2004 by Luigi Marcuccio,
represented by Alessandro Distante, lawyer.