Case T-119/06: Action brought on  19 April 2006  — Usha Martin v Council and Commission
Date: 2006-07-01
Institutions: Court of First Instance
Subjects: Council of the European Union, European Commission, India, action for annulment (EU), anti-dumping legislation, import, originating product, section, steel

C 154/18

EN

Official Journal of the European Union

1.7.2006

Form of order sought

Form of order sought

— The decision of the First Board of Appeal of the Office for
Harmonization in the Internal Market (Trade Marks and
Designs) of January 17, 2006 in appeal R 682/2004-1 to
be annulled.

— The defendant to be ordered to pay the costs.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a
declaration of invalidity: The word mark ‘O STORE’ for services
in class 35 — Community trade mark No 2 074 599

Proprietor of the Community trade mark: The applicant

Party requesting the declaration of invalidity of the Community trade
mark: Venticinque Limited

Trade mark right of the party requesting the declaration of invalidity:
The earlier national word mark ‘THE O STORE’ for goods and
services in classes 18 and 25

Decision of the Cancellation Division: Partial declaration of inva-
lidity of the Community trade mark

Decision of the Board of Appeal: Dismissal of both the applicant's
and Venticinque Ltd's appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94 as the goods and services are absolutely
dissimilar and there is no likelihood of confusion between the
conflicting trade marks since the distinctive character of the
earlier mark ‘THE O STORE’ is very limited. Furthermore, proof
has not been provided that ‘THE O STORE’
is in any way
known or well established in the French market.

Action brought on 19 April 2006 — Usha Martin v
Council and Commission

(Case T-119/06)

(2006/C 154/47)

Language of the case: English

Parties

Applicant: Usha Martin Ltd (Calcutta, India) (represented by: K.
Adamantopoulos, lawyer and J. Branton, Solicitor)

Defendants: Council of the European Union and Commission of
the European Communities

— A declaration, pursuant to Article 230 of the Treaty estab-
lishing the European Communities, that Commission Deci-
sion of 22 December 2005 amending Commission Decision
1999/572/EC accepting undertakings in connection with
the anti-dumping proceedings concerning imports of steel
wire rope and cables originating,
in India,
published on 26 January 2006 in the Official Journal of the
European Union, OJ L 22, p. 54, 26.01.2006 (‘contested
decision’) is annulled insofar as it relates to the applicant
and withdraws a minimum price undertaking previously in
force.

inter alia,

— A declaration, pursuant to Article 230 of the Treaty estab-
lishing the European Communities, that Council Regulation
(EC) No 121/2006 of 23 January 2006 amending Regu-
lation (EC) No. 1858/2005 imposing a definitive anti-
dumping duty on imports of steel ropes and cables origin-
ating, inter alia, in India, published on 26 January 2006 in
the Official Journal of the European Union, OJ L 22, p. 1,
26.01.2006 is annulled insofar as it relates to the applicant
and gives effect to the contested decision withdrawing a
minimum price undertaking previously held by the appli-
cant.

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

ings be borne by the respondent.

Pleas in law and main arguments

The applicant is an exporting producer of steel wire ropes in
India exporting to the European Union.

The Commission had by decision of 13 August 1999 (1)
accepted certain minimum price undertakings offered by
among others the applicant in the framework of anti-dumping
proceedings concerning imports of steel wire ropes and cables
originating in e.g. India.

By Decision 2006/38 (2) the Commission withdrew the accep-
tance of the price undertaking offered by the applicant on the
grounds, according to the applicant, that it had failed to report
sales outside the scope of the price undertaking and claimed
Dubai origin on steel wire ropes and cables from Dubai when
in fact the origin should have been Indian due to insufficient
further working of Indian raw material in Dubai. By Council
Regulation No 121/2006 (3) a definitive anti-dumping duty was
imposed giving effect to the Commission's decision.

Concerning the failure to report sales outside the scope of the
minimum price undertaking, the applicant alleges it relates to a
human error and claims a violation of the principle of propor-
tionality as it is not a material breach of the price undertaking
and should therefore only result in instructions not to commit
such a breach in the future and not in a withdrawal of the
price undertaking. The applicant further submits that no mate-
rial harm was done to the Community industry.

1.7.2006

EN

Official Journal of the European Union

C 154/19

Concerning the claimed Dubai origin, the applicant alleges the
institutions have erred in law by making an incorrect origin
analysis as the Commission allegedly used the criterion whether
or not there was a change in the tariff heading of the product
concerned, whereas the applicant finds that the relevant criteria
are the following:

i) Last substantial process or operation;

Form of order sought

— to annul the contested decision; or

— in the alternative, to annul the measures contained in Arti-

cles 2, 3 and 4 of the contested decision;

— to order the defendant to pay the costs of the proceedings;

ii) the operation must be economically justified;

and

iii) the operation must be carried out

in an undertaking

equipped for the purpose; and

iv) the operation must result in the manufacture of a new
product or represent an important stage of manufacture.

there were less onerous sanctions than with-
Furthermore,
drawing the price undertaking, such as the reclaiming of anti-
dumping duty by the Member States' customs authorities or
making it a condition that exports from Dubai of ropes made
from Indian strand had stopped.

The applicant
lack of
therefore invokes an error of
reasoning, misuse of powers and a violation of the principle of
proportionality.

law,

(1) Commission Decision 1999/572/EC of 13 August 1999 accepting
undertakings offered in connection with the anti-dumping proceed-
ings concerning imports of steel wire ropes and cables originating
in the People's Republic of China, Hungary, India, the Republic of
Korea, Mexico, Poland, South Africa and Ukraine (OJ 1999 L 217,
p. 63).

(2) Commission Decision 2006/38/EC of 22 December 2005 amending
Commission Decision 1999/572/EC accepting undertakings offered
in connection with the anti-dumping proceedings concerning
inter alia , in
imports of steel wire ropes and cables originating,
India (JO 2006 L 22, p. 54).

(3) Council Regulation (EC) No 121/2006 of 23 January 2006
amending Regulation (EC) No 1858/2005 imposing a definitive
anti-dumping duty on imports of steel ropes and cables originating,
inter alia , in India (JO 2006 L 22, p. 1).

Action brought on 25 April 2006 — British Nuclear
Group Sellafield v Commission

(Case T-121/06)

(2006/C 154/48)

Language of the case: English

Parties

Applicant: British Nuclear Group Sellafield Limited (Sellafield,
United Kingdom) (represented by: J. Percival, A. Renshaw, J.
Isted and G. Bushell, Solicitors and R. Plender, Barrister)

— to take any other actions that the Court considers to be

appropriate.

Pleas in law

The applicant contests
the Commission's Decision of 15
February 2006 on a procedure in application of Article 83 of
the Euratom Treaty (BNG Sellafield Limited). By the contested
the Commission issued a warning under Article
Decision,
83(1)(a) EA. The Commission alleges
the applicant
infringed certain provisions of the Euratom Treaty and Regu-
lation 302/2005 (1), which relate to its particular reporting
obligations and the provisions of access to certain facilities. The
Commission accordingly requested that the applicant imple-
ment specified measures within the periods prescribed in the
contested decision.

that

In support of its application, the applicant submits, first, that
the Commission lacks the competence to adopt the contested
decision and the measures imposed on the applicant. According
the Commission does not have the legal
to the applicant,
authority to adopt
including the
measures dealing with principles of quality assurance and stan-
dards for nuclear accountancy and control, which exceed the
scope of existing safeguards legislation.

the measures

imposed,

The applicant submits also that the defendant infringed the
principle of subsidiarity since the imposed measures encroach
on the competence of the relevant national authorities.

According to the applicant, the contested decision is further-
more based,
in whole or in part, on safety concerns, rather
than on safeguard concerns, and accordingly Article 83 EA
would not be the appropriate legal basis for the adoption of
the contested decision.

The applicant submits, second, that the Commission committed
an infringement of an essential procedural requirement by
failing to conduct a full and proper procedure under Article 83
EA. The applicant states that the Commission did not inform it
of its objections, did not offer a hearing and has violated its
right of defence.

Third, the applicant invokes that the Commission, in finding
that
the applicant had breached its safeguards obligations,
infringed the Euratom Treaty and the rules of law relating to its
application by committing a manifest error of assessment and
infringed the principle of legal certainty.

Defendant: Commission of the European Communities

Fourth, the applicant invokes a violation of the principle of
proportionality and legitimate expectations.