Case T-297/06: Action brought on 17 October 2006 — Majątek Hutniczy v Commission
Date: 2006-12-16
Institutions: Court of First Instance
Subjects: European Commission, Poland, State aid, action for annulment (EU), aid for restructuring, control of State aid, iron and steel industry, redemption

16.12.2006

EN

Official Journal of the European Union

C 310/25

In particular,

In its third plea, the applicant claims that the Commission
failed to have regard,
in its assessment of the justified and
appropriate nature of the remedies proposed by the IBPT, to
the principles and objectives of the New Regulatory Framework
for electronic communications.
the applicant
claims that the fact that the Commission postulated the applica-
tion of symmetrical termination charges is a manifest infringe-
ment of the principles of proportionality and non-discrimina-
tion in that the Commission failed to have sufficient regard to
the applicant's position and the objective differences that
pertained between it and the other mobile operators. Further-
more, the applicant submits that the tariff rules approved by
the Commission constitute a misuse of powers and infringe
Article 2 of Directive 2002/77/EC. (2)

(1) Directive 2002/21/EC of

the
Council of 7 March 2002 on a common regulatory framework for
electronic communications networks and services
(Framework
Directive) (OJ 2002 L 108, p. 33).

the European Parliament and of

(2) Commission Directive 2002/77/EC of 16 September 2002 on
competition in the markets for electronic communications networks
and services (OJ 2002 L 249, p. 21).

Action brought on 19 October 2006 — Dongguan Nanzha
Leco Stationery v Council

(Case T-296/06)

(2006/C 310/47)

Language of the case: English

Parties

Applicant: Dongguan Nanzha Leco Stationery Mfg. Co., Ltd
(Dongguan City, China) (represented by: A. P. Bentley, QC)

Defendant: Council of the European Union

Form of order sought

— Annul Council Regulation (EC) No 1136/2006 in so far as

it applies to the applicant; and

— order the Council to bear the costs of the present proceed-

ings.

Pleas in law and main arguments

of lever arch mechanisms originating in the People's Republic
of China (1), in so far as the regulation affects the applicant.

In support of its application, the applicant invokes an infringe-
ment of Article 2(10) of the Basic Regulation (2) in that the
Community institutions determined the applicant's export price
at a level ex factory in China which did not include sales,
general and administrative expenses, whereas the normal value
did include such expenses.

The applicant further invokes an infringement of the principles
of good administration and diligent investigation in that the
Community institutions failed to verify data relating to the
sales, general and administrative expenses of the sales company
through which the applicant sells its products in order to deter-
mine whether the applicant's export price should be deter-
mined at the price level of this sales company instead of at the
price level of the applicant's factory in China.

Finally, the applicant invokes an infringement of Article 2(7) of
the Basic Regulation and the principles of good administration
and objectivity in that the Community institutions changed
their methodology for determining the normal value without
any apparent objective justification.

(1) OJ 2006 L 205, p. 1.
(2) Council Regulation (EC) No 384/96 of 22 December 1995 on
protection against dumped imports from countries not members of
the European Community (OJ 1996 L 56, p. 1).

Action brought on 17 October 2006 — Majątek Hutniczy
v Commission

(Case T-297/06)

(2006/C 310/48)

Language of the case: French

Parties

Applicant: Majątek Hutniczy sp. z o.o. (Częstochowa, Poland)
(represented by: C. Rapin and E. Van den Haute, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— declare this action admissible;

lever arch
The applicant, who is a Chinese producer of
mechanisms, seeks the annulment of Council Regulation (EC)
No 1136/2006 imposing a definitive anti-dumping duty and
collecting definitively the provisional duty imposed on imports

— annul Articles 3 and 4 of the Commission Decision of 5
July 2005 concerning the aid granted by Poland to Huta
Częstochowa S.A.
(notified under document number C
(2005) 1962);

C 310/26

EN

Official Journal of the European Union

16.12.2006

— in the alternative, declare that on the date on which this
action is brought
there is no obligation on Poland to
recover the aid and interest referred to in Article 3 of the
decision and that the amounts of that aid and interest are
therefore not payable;

— in the further alternative, annul the second subparagraph of
Article 3(2) of the decision and refer the question of interest
back to the Commission for a fresh decision in accordance
with Annex A to this application or with such other consid-
eration as the Court may indicate in the grounds of its judg-
ment;

— in any event, order the Commission to pay all of the costs;

— if the Court should decide that there is no need to adjudi-
cate, order the Commission to pay the costs pursuant to
the combined provisions of Article 87(6) and Article 90(a)
of the Rules of Procedure of the Court of First Instance.

Pleas in law and main arguments

By its decision C (2005) 1962 final of 5 July 2005 (State Aid
No C 20/04, ex NN 25/04) the Commission declared certain
restructuring aid granted by Poland to the steel producer Huta
Częstochowa S.A. to be incompatible with the common market
and ordered its recovery. The applicant is one of the successors
to the aid beneficiary which, in the context of the restructuring
of Huta Częstochowa S.A., received certain assets and liabilities
from that company to be bought up subsequently by the
company Industrial Union of Donbass through its subsidiary
ISD Polska. The applicant is included in the contested decision
among the companies required jointly and severally to repay
the aid declared incompatible with the common market.

In support of its action for the partial annulment of the deci-
sion, the applicant relies on four pleas in law.

By its first plea, it claims that the Commission made a manifest
error of assessment of the facts decisive for the outcome of the
investigation. It maintains that, once the assets of the original
beneficiary of the incompatible aid are sold, those assets having
been bought by ISD Polska (and Donbass), it is the vendor of
the original aid beneficiary that retains the benefit of that aid
and must ensure that it is repaid. The applicant claims that in
this case, if the Commission had correctly established the rele-
vant facts concerning the sale of the assets of Huta Często-
chowa,
to ISD
through, among others, Majątek Hutniczy,
Polska (and Donbass), it would have come to the view that,
because the means of production of Huta Częstochowa were
acquired at a price reflecting the market price, restitution of the
aid would thereby already have been made to the vendor.
According to the applicant, the Commission was therefore in
breach of its obligation to examine, carefully and impartially,
all the relevant facts of the case.

By its second plea, the applicant claims that the Commission
infringed Protocol No 8 to the Treaty of Accession, on the
industry (1), by interpreting
restructuring of the Polish steel
purely literally certain of its provisions which, in the view of
the applicant,
it should have interpreted in the light of the
objectives pursued by that protocol and in consideration of the
background to its adoption. That allegedly incorrect interpreta-

tion led the Commission to require, by its decision, repayment
of State aid received before the adoption of Protocol No 8 by
companies not included in Annex 1, which designates eight
beneficiary companies which are eligible for aid from Poland in
derogation from Articles 87 EC and 88 EC. It also claims that,
as Protocol No 8 does not expressly state that it applies retroac-
tively for a specific period, the Commission's interpretation of
that protocol infringed several general principles such as those
of non-retroactivity and of legal certainty. The applicant claims
that Protocol No 8, on a correct
interpretation, does not
empower the Commission to call for the repayment of State
aid received before its adoption by companies not referred to
in Annex 1. It thus concludes that, having acted in that way
without a legal basis, the Commission encroached upon the
temporal competence of other Community institutions.

invoked as an alternative plea if the Court
The third plea,
should find that the Commission has properly established the
facts and correctly interpreted Protocol No 8, alleges infringe-
ment of Article 14(1) of Regulation No 659/1999 (2). The
applicant submits that, by adopting the decision to recover the
aid, the Commission is acting at variance with the principles of
equal treatment, legitimate expectations and legal certainty.

By its fourth plea, the applicant submits, in support of its alter-
native request for annulment of the second subparagraph of
Article 3(2) of the contested decision, that the Commission
infringed Regulation No 794/2004 (3) when calculating the
interest rate applicable to the recovery of the aid in the present
case.

(1) OJ 2003 L 236, p. 948.
(2) Council Regulation (EC) No 659/1999 of 22 March 1999, laying
down detailed rules for the application of Article 93 of the EC
Treaty, (OJ 1999 L 83, p.1).

(3) Commission Regulation (EC) No 794/2004 of 21 April 2004 imple-
menting Council Regulation (EC) No 659/1999 laying down
detailed rules for the application of Article 93 of the EC Treaty, (OJ
L 140 of 30.4.2004, p. 1).

Action brought on 18 October 2006 — Agencja Wydaw-
nicza Technopol v OHIM (1000)

(Case T-298/06)

(2006/C 310/49)

Language of the case: English

Parties

Applicant: Agencja Wydawnicza Technopol sp. z o.o. (Często-
chowa, Poland) (represented by: V. von Bomhard, A. Renck and
T. Dolde, lawyers)