Case T-143/06: Action brought on  19 May 2006  — MTZ Polyfilms v Council
Date: 2006-07-29
Institutions: Court of First Instance
Subjects: Council of the European Union, India, action for annulment (EU), anti-dumping duty, anti-dumping legislation, plastics, plastics industry

C 178/34

EN

Official Journal of the European Union

29.7.2006

Form of order sought

Action brought on 19 May 2006 — MTZ Polyfilms v
Council

— Annul the decision of the European Commission to open
the formal
investigation procedure in Case State Aid C
43/2005 (ex N 99/2005) — Polish Stranded Costs — of 23
November 2005, or in the alternative, annul the decision as
far as the PPA (power purchase agreement) concluded by
the applicant is concerned;

(Case T-143/06)

(2006/C 178/63)

— award the applicant the costs of the present action.

Language of the case: English

Pleas in law and main arguments

The applicant is a heat and power plant operator located in
Poland. In the contested decision, the Commission decided to
open a formal investigation procedure into alleged new State
aid in the form of power purchase agreements concluded
between power generators in Poland and the State owned
network operator ‘PSE’ (1).

In support of its application, the applicant argues that the
Commission had no jurisdiction to open a formal investigation
procedure regarding aid measures granted before the accession
of Poland to the European Union, which are not applicable
after the date of accession.
the Commission
violated the general legal principles of non-retroactivity and of
the protection of legitimate expectations.

In doing so,

Furthermore, the applicant submits that the Commission has
committed an error of law and of appreciation in classifying
the measure as a new state aid. First, the Commission omitted
to assess the measure in the light of the factual and legal
circumstances existing at
the time the agreements were
concluded. Secondly, the Commission inadequately assessed the
notion of economic advantage within the meaning of Article
87(1) EC by doing a global examination of all power purchase
agreements instead of doing an individual examination. Thirdly,
the Commission did not take into account the fact that, at the
time the electricity markets of the Member States were opened
the agreement concluded by the applicant
to competition,
could not distort competition in the common market as Poland
was not yet a Member State. Finally, the applicant submits that
the aid constitutes not new state aid, but existing aid according
to both the Accession Treaty and the case law, by virtue of
which aid already in application in a market closed to competi-
tion until its liberalisation is to be regarded as existing aid from
the time of liberalisation. The applicant further states that the
Commission did not examine whether the agreement in ques-
tion was still in force after the Polish accession.

Finally, the applicant submits that the contested decision is
inadequately reasoned and infringes Article 253 EC.

(1) State aid — Poland — State aid No C 43/2005 (ex N 99/2005) —
Polish Stranded Costs — Invitation to submit comments pursuant
to Article 88(2) of the EC Treaty (OJ C 52, 2006, p. 8).

Parties

Applicant: MTZ Polyfilms Ltd. (Mumbai, India) (represented by:
P. De Baere, lawyer)

Defendant: Council of the European Union

Form of order sought

— Annul Council Regulation (EC) No 366/2006 of 27
February 2006 imposing a definitive anti-dumping duty on
imports of polyethylene terephthalate (PET) film originating,
inter alia, in India;

— order the Council to bear the costs of proceedings.

Pleas in law and main arguments

The applicant produces and exports polyethylene terephthalate
film to the European Community.

In support of its application, it first claims that the contested
regulation violates Article 2(8) and 2(9) of the basic regu-
lation (1). The applicant contests that the contested regulation
constructs the applicant's export price to the Community on
the basis of its export prices to third countries, because the
actual export prices to the Community are allegedly unreliable
due to the existence of minimum import prices.

the applicant claims that

According to the applicant, its export prices are not unreliable
in the meaning of Article 2(9) of the basic regulation. Further-
more,
the methodology used is
incompatible with the basic regulation which spells out the
methodologies that can be used for determining an export
price. The applicant submits that Articles 2(8) and 2(9) of the
basic regulation apply equally to review investigations, such as
the contested proceedings, regardless of whether there were
undertakings in place.

29.7.2006

EN

Official Journal of the European Union

C 178/35

Second, the applicant invokes a breach of the agreement on
implementation of Article VI of GATT 1994 (2). According to
the applicant, its export price is not unreliable in the meaning
of Articles 2.1 and 2.3 of that agreement. In addition, the appli-
cant submits that the methodology used is incompatible with
Articles 2.1, 2.3 and 11 of
the agreement. The applicant
submits finally that Articles 2.1 and 2.3 of the agreement apply
equally to reviews carried out pursuant to Article 11 of the
agreement, such as the partial interim review at hand.

Finally, the applicant invokes a lack of legal basis for the meth-
odology applied to determine the applicant's export price to
the Community and a breach of the principle of legal certainty
by making it impossible for exporting producers to determine
their behaviour in the context of a price undertaking.

(1) Council Regulation (EC) No 384/96 of 22 December 1995 on
protection against dumped imports from countries not members of
the European Community (OJ L 56, 1996, p. 1).

(2) Agreement on Implementation of Article VI of the General Agree-
- anti-

ment on Tariffs and Trade 1994 (WTO-GATT 1994)
dumping agreement (OJ L 336, 1994 , p. 103).

— order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark 'FRESHHH' for
goods in Classes 29, 30 and 32 (Application No 3 198 165).

Decision of the Examiner: Rejection of the application.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: The mark applied for is registrable; no grounds for
refusal under Article 7(1)(b) and (c) or Article 7(2) of Regu-
lation (EC) No 40/94 (1) stand in the way of its registration.

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

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

Action brought on 19 May 2006 — En Route International
Limited v OHIM

Action brought on 17 May 2006 — Castellani v OHIM —
Markant Handels und Service (CASTELLANI)

(Case T-147/06)

(2006/C 178/64)

Language of the case: German

(Case T-149/06)

(2006/C 178/65)

Language in which the application was lodged: English

Parties

Parties

Applicant: Castellani SpA (Pontedera, Italy) (represented by: A.
Di Maso, M. R. Di Maso, lawyers)

Applicant: En Route International Limited (Berkshire, United
Kingdom) (represented by: W. W. Göpfert, lawyer)

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

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

Other party to the proceedings before the Board of Appeal: Markant
Handels und Service GmbH (Offemburg, Germany)

Form of order sought

The applicant claims that the Court should:

Form of order sought

— Annul the decision of the First Board of Appeal of the
Office for Harmonisation in the Internal Market
(Trade
Marks and Designs) of 22 February 2006 in Case R
449/2005-1;

— annul the decision of the Fourth Board of Appeal of 7

March 2006 in Case R 352/2005-4;

— order OHIM to pay the costs.