Case T-303/95: Action brought on 3 August 2005 — ACEA Electrabel Produzione SpA/Commission of the European Communities
Date: 2005-10-15
Institutions: Court of First Instance
Subjects: European Commission, State aid, action for annulment (EU), gas industry, suspension of aid, urban infrastructure

C 257/14

EN

Official Journal of the European Union

15.10.2005

Action brought on 26 July 2005 — Shanghai Excell M&E
Enterprise and Shanghai Adeptech Precision/Council

relating to normal value, export price and profit margin and
that therefore Articles 2.A.7. para(A) and 2.C. para(10) of Regu-
lation (EC) 384/1996 were violated.

(Case T-299/05)

(2005/C 257/27)

Language of the case: English

Finally, the applicants contend that the contested regulation
does not
it states incorrect
addresses for both of them. They consider that a material error
of fact.

identify them properly in that

(1) OJ L 112, 3/5/2005, p. 42
(2) OJ L 256, 03/08/2004, p. 8

Parties:

Applicant(s): Shanghai Excell M&E Enterprise Co Ltd and
Shanghai Adeptech Precision Company Limited (Shanghai,
China) [represented by: R. MacLean, solicitor]

Defendant(s): Council of the European Union

Form of order sought:

— annul Council Regulation (EC) 692/2005 (1) of 28 April

2005, insofar as it applies to the applicant; and

— order the Council to pay the legal costs and expenses of the

procedure.

Pleas in law and main arguments:

The contested regulation imposed an anti-dumping duty on the
applicants' exports of retail electronic weighing scales which
also applied retrospectively to imports of these products regis-
tered in accordance with Commission Regulation (EC)
1408/2004 (2). Customs authorities
in the EU were also
instructed to cease the registration of
imports of products
coming from the People's Republic of China for the applicants.

The applicants request the Court to annul this regulation. In
support of their application they invoke an infringement of
Article 2.7(c) para. (2) of Council Regulation (EC) 384/1996 on
the grounds that the Commission rendered a determination on
the issue of Market Economy Treatment for the applicants after
the expiry of the three month period provided for in this
article. They further
invoke manifest errors of assessment
relating to the determination of whether the applicants oper-
ated under market
applicants
consider these alleged errors as violations of Article 2.A.7.(c)
para. (1) of Regulation (EC) 384/1996.

economy conditions. The

The contested regulation was adopted after a ‘newcomer inves-
tigation’ in respect of the applicants. The applicants allege that
in that investigation the Community institutions did not adopt
the same methodology they had applied in the original investi-
gation which led to the duty and that, therefore, Article 11
paragraph 9 of Regulation (EC) 384/1996 was also violated.

Action brought on 3 August 2005 — ACEA Electrabel
Produzione SpA/Commission of the European Commu-
nities

(Case T-303/95)

(2005/C 257/28)

Language of the case: Italian

Parties:

Italy)
Applicant: ACEA Electrabel Produzione SpA (Rome,
[represented by: Luca G. Radicati di Brozolo, Massimo Merola,
Chiara Bazoli, Fabrizion D'Alessandri, lawyers]

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

— annul the Commission's decision of 16 March 2005 on aid
for the reduction of greenhouse gases through the use of
sources of alternative energy (State aid No C 35/03), in that
it classifies as State aid measures to fund the construction
of a distance heating system in the district of Torrino-
Mezzocammino, and in that it suspends the grant of aid
until Italy has supplied evidence of repayment by ACEA of
the aid declared unlawful and incompatible with Decision
2003/193/EC of 5 June 2002 on tax relief for ex-municipal
undertakings;

The applicants also contend that the Community institutions
failed to apply the proper standards in assessing the criteria

— order the Commission to pay the costs.

15.10.2005

EN

Official Journal of the European Union

C 257/15

Pleas in law and main arguments

The applicant in this case is a company controlled by Electrabel
SA and ACEA. More precisely, it was one of three operating
companies controlled by the hodling company ACEA Electrabel
Holding SpA, a joint venture company created by Electrabel
and ACEA in order to operate in the field of gas and electric
energy.

The action concerns the decision of 16 March 2005 by which
the Commission concluded the proceedings brought under
Article 88(2) EC for the purpose of examining the compatibility
with Community law of the funding granted by the Regione
Lazion for the extension of a distance heating system in the
district of Torrino-Mezzocammino, near Rome (State aid No C-
35/03 — ex NN 90/2002).

The applicant requests the Court of First Instance of the Euro-
pean Communities to declare the decision null in so far as it
classifies as State aid measures to fund the construction of a
distance heating network in the district of Torrino-Mezzocam-
mino, and in that it suspends the grant of aid until Italy has
supplied evidence of repayment by ACEA of the aid declared
unlawful and incompatible with Decision 2003/193/EC of 5
June 2002 on tax relief for ex-municipal undertakings (‘the Tax
Relief Decision’).

measures
together with the new measures) which,
according to the principles to be drawn from that judg-
ment, must be present if grant of the measure/aid? is to be
suspended.

(1) Judgment in Joined Cases T-244/93 and T-486/93 TWD v Commis-
sion [1995] ECR II-2265, upheld by judgment of the Court of
Justice in Case C-355/95 [1997] ECR I-2549.

Action brought on 4 August 2005 — Cain Cellars v OHIM

(Case T-304/05)

(2005/C 257/29)

Language in which the application was lodged: German

Parties:

Applicant: Cain Cellars, Inc. (St. Helena, United States) (repre-
sented by: W.-W. Wodrich, lawyer, and J.K.F. Albrecht, lawyer)

The action is based in particular on the following main
grounds:

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

(a) the measure in question does not constitute State aid, inas-
much as it is not capable of affecting competition, and does
not on any view cause any damage to intra-Community
trade. In point of fact, it exhausts its effects at local level,
being intended to subsidise a project (the construction of a
heating system in a quarter near Rome) that is to benefit a
limited number of users in a restricted area of Italian terri-
tory, in fact, merely an overspill area for a large town;

(b) the recipient (i.e. the applicant) of that measure is not the
same as the beneficiary of the aid that is the subject-matter
of the Tax Relief Decision (i.e. ACEA), nor does it constitute
a single economic entity with the latter, so that the order
for suspension of the grant of aid appears quite unjustified;

(c) even leaving aside the error in the identification of the reci-
pient and even if ACEA were, quod non, to be considered to
be the actual recipient of the aid in question, application of
the judgment in Deggendorf (1) would seem to be without
bearing on the circumstances of this case. Specifically, the
Commission has not demonstrated that
there are any
grounds (in particular, the cumulative effect of the previous

Form of order sought:

The applicant claims that the Court should:

— annul the decision of the defendant (First Board of Appeal)

of 23 May 2005 in Case R 0975/2004-1;

— order the defendant to pay the costs.

Pleas in law and main arguments:

Community trade mark concerned: The figurative mark in the form
of a pentagon for ‘Wine’ goods in Class 33 — Application No
3 425 121

Decision of the Examiner: Rejection of the application

Decision of
appeal

the Board of Appeal: Dismissal of the applicant's