Case T-295/06: Action brought on 19 October 2006 — BASE v Commission
Date: 2006-12-16
Institutions: Court of First Instance
Subjects: Belgium, European Commission, appeal, judicial proceedings, regulation of telecommunications, services contract, telecommunications, telephone charges, transmission network

C 310/24

EN

Official Journal of the European Union

16.12.2006

Form of order sought

— annul the decision of the Fourth Board of Appeal of OHIM
of 9 August 2006 in Case R 746/2004-4 in so far as it
dismisses the applicant's appeal

— order OHIM to bear its own costs and to pay the applicant's

costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘Vitality’ for
goods and services in Classes 29, 30, 32, 33 and 43 (Appli-
cation No 2 835 684).

Decision of the Examiner: Partial refusal to register

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The ground for denying the mark protection which
is given in Article 7(1)(b) of Regulation (EC) No 40/94 (1) does
not preclude registration as the mark for which registration is
sought makes it immediately possible for the relevant public to
recognise the origin of the goods protected by that mark and
to distinguish them from the goods of other enterprises.

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

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

Action brought on 19 October 2006 — BASE v Commis-
sion

(Case T-295/06)

(2006/C 310/46)

Language of the case: French

Parties

Applicant: BASE NV (Brussels, Belgium)
Verheyden, Y. Desmedt and F. Bimont, lawyers)

(represented by: A.

Defendant: Commission of the European Communities

Form of order sought

— Declare that the Commission infringed the rules of proce-
dure set out in Article 7(4) of the Framework Directive (1)
by wrongly failing to open a detailed investigation proce-
dure into the draft regulatory measures that were communi-
cated to it by the Institut Belge des Services Postaux (IBPT);

— Declare that the Commission committed a number of mani-
fest errors of assessment in its analysis of the draft measures

communicated by the IBPT in finding, wrongly, that BASE
had significant power on the market for voice call termina-
tion on its own individual mobile network in Belgium;

— Declare that the Commission acted in breach of the general
principles and the fundamental objectives laid down in the
New Regulatory Framework by wrongly approving the
remedies proposed by the IBPT, when the imposition of
each one of those remedies was manifestly disproportionate
and excessive. In particular, the Commission infringed both
the general principles and the fundamental objectives laid
down in the New Regulatory Framework by postulating the
application of symmetrical termination charges in the short
term, without considering the concrete implications of this
symmetry for BASE, the third entrant on the market;

— Annul, for all of the reasons outlined above, the Commis-

sion decision in its entirety;

— Order the Commission to pay all of the costs.

Pleas in law and main arguments

the national

By the contested decision of 4 August 2006 (Case BE/
2006/0433), the Commission approved, at the end of the first
phase of enquiry prescribed in Article 7(3) of Directive
regulatory
2002/21/EC, a draft decision that
authority of Belgium, the IBPT, had communicated to it on 7
July 2006 concerning the wholesale market for call termination
on individual mobile networks in Belgium and under which the
IBPT had provisionally decided that each of the three mobile
network operators in Belgium,
including the applicant, had
significant market power on the wholesale market for voice call
termination on their
individual mobile networks, and to
impose on them, on that basis, certain obligations. The draft
decision communicated by the IBPT also contained a decision
to put in place a ‘glide path’ mechanism which aims gradually
to reduce the levels of termination charges of Belgian mobile
operators until 2008.

In support of its action for annulment, the applicant relies on
three pleas in law.

In its first plea,
the Commission
the applicant claims that
infringed the rules for the consultation procedure laid down in
Article 7 of Directive 2002/21/EC by wrongly failing to open a
detailed investigation procedure under Article 7(4) of
that
directive, when, according to the applicant, the draft measures
communicated by the IBPT could not, by reference to the
evidence and reasoning contained in the notification file, justify
the designation of the applicant as an operator having signifi-
cant power on the wholesale market for mobile call termina-
tion in Belgium.

In its second plea, the applicant claims that the Commission
made a number of manifest errors of assessment in its assess-
ment of the significant power held by the applicant on the
market for voice call termination in Belgium, as outlined by the
Belgian national authority.

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);