Case T-121/06: Action brought on  25 April 2006  — British Nuclear Group Sellafield v Commission
Date: 2006-07-01
Institutions: Court of First Instance
Subjects: EAEC, European Commission, action for annulment (EU), nuclear power station, nuclear safety

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.

C 154/20

EN

Official Journal of the European Union

1.7.2006

Finally, the applicant submits that the Commission infringed
the applicant's right of defence and the right to a fair hearing,
by breaching its duty to inform the applicant of the essence of
the measures imposed by the sanction in sufficient time to
afford the applicant an opportunity to comment on them
before the contested decision was adopted.

(1) Commission Regulation (Euratom) No 302/2005 of 8 February

2005 on the application of Euratom safeguards (OJ L 54, p. 1)

Action brought on 28 April 2006 — Kapman v OHIM
(representation of a saw blade in blue)

(Case T-127/06)

(2006/C 154/50)

Language of the case: English

Action brought on 28 April 2006 — Helkon Media v
Commission

(Case T-122/06)

(2006/C 154/49)

Language of the case: German

Parties

Applicant: Kapman A.B. (Sandviken, Sweden) (represented by:
R. Almaraz Palmero, lawyer)

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

Parties

Form of order sought

Applicant: Helkon Media AG (Munich, Germany) (represented
by: U. Karpenstein, lawyer)

— Annulment of the Decision of the Second Board of Appeal
at OHIM of 10 February 2006 in Case R 303/2004-2;

Defendant: Commission of the European Communities

— order the Office to refund the appeal fee to the applicant;

Form of order sought

— order the Office to pay the costs of the dispute, including
those relating to the procedure before the Board of Appeal.

— order

the European Commission to pay the sum of

EUR 120 000 to HELKON MEDIA AG i.L;

— order the Commission to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

Helkon Media AG, in liquidation, represented by its insolvency
administrator, relies on a claim for payment against the Euro-
pean Commission under an agreement to support a film, on
the basis of an arbitration clause for the purposes of Article
238 EC, in the annex to that agreement.

According to the applicant, the claim for payment is not extin-
guished by the set-off alleged by the Commission. It bases its
action on the assertion that this set-off has no legal basis. The
applicant further contends that a set-off after the opening of
insolvency proceedings is inadmissible in German law. Finally,
it submits that the recognised conditions for a set-off have not
been met.

Community trade mark concerned: A figurative mark representing
a saw blade in blue for goods in class 8 [saw blades (for hand-
operated tools)] — application No 2 532 497

Decision of the examiner: Refusal of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) of Council Regu-
lation No 40/94 as among others the combination of shape
and colour causes an outstanding visual impression to the rele-
vant public, i.e. professional handymen and not to the average
consumer.