Case T-142/06: Action brought on  12 May 2006  — ECZG v Commission
Date: 2006-07-29
Institutions: Court of First Instance
Subjects: European Commission, Poland, State aid, action for annulment (EU), control of State aid, electrical industry

29.7.2006

EN

Official Journal of the European Union

C 178/33

Re:

the First Board of
Action brought against
Appeal of OHIM of 3 March 2005 (R 497/2004-1), relating to
opposition proceedings between TeleTech Holdings, Inc. and
Teletech International SA

the decision of

Operative part of the order

1. The action is dismissed.

2. The applicant is ordered to pay the costs, with the exception of

those incurred by the intervener.

3. The intervener shall bear its own costs.

(1) OJ C 171, 9.7.2005.

Action brought on 18 May 2006 — Glaverbel v OHIM
(design applied to the surface of goods)

(Case T-141/06)

(2006/C 178/61)

Language of the case: English

distinctiveness in accordance with Article 7(3) CTMR, and
that the Community trade mark application 003183068
has acquired distinctiveness in accordance with Article 7(3)
CTMR;

— remit Community trade mark application 003183068 to
the Office for Harmonisation in the Internal Market (Trade
Marks and Designs) for acceptance and publication;

— order the Office to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The figurative mark consisting
of a design applied to the surface of goods for goods in classes
19 and 21 (unworked or semi-worked glass, patterned glass,
glass
application
3 183 068)

trade mark

(Community

sheets,

etc.)

Decision of the examiner: Refusal of the Community trade mark
application for all the goods

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The applicant contests the decision of the Board of
Appeal only in relation to certain goods in class 21. The appli-
cant invokes in that respect a violation of Article 7(3) of Regu-
lation No 40/94.

Action brought on 12 May 2006 — ECZG v Commission

Parties

Applicant: Glaverbel SA (Brussels, Belgium) (represented by: S.
Möbus, T. Koerl, lawyers)

(Case T-142/06)

(2006/C 178/62)

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

Language of the case: English

Form of order sought

Parties

— Annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market
(Trade
Marks and Designs) of 1 March 2006 (Case R 0986/2004-
4) in so far as the decision applies to the contested goods;
and

Applicant: Elektrociepłownia Zielona Góra S.A. (Zielona Góra,
Poland) (represented by: M. Powell, Solicitor, C. Arhold and K.
Struckmann, lawyers)

— hold that, in respect of the contested goods, the evidence of
to demonstrate acquired
sufficient

use submitted was

Defendant: European Commission of the European Commu-
nities

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.