Case T-411/06: Action brought on 22 December 2006 — SO.GE.L.M.A. v EAR
Date: 2007-02-24
Institutions: Court of First Instance
Subjects: European Agency for Reconstruction, action for annulment (EU), award of contract, disarmament, explosive, inland waterway shipping, invitation to tender, works contract

C 42/40

EN

Official Journal of the European Union

24.2.2007

— by refusing the applicant market economy treatment, the
Commission breached Article 3 of the Basic Regulation and
made a manifest error of assessment
in failing to take
account of relevant information concerning the structure of
the market and in particular the important role played by
independent intermediaries in the supply of products manu-
factured by the applicant;

— the Commission acted outside the scope of Article 18(1) of
the Basic Regulation and breached the applicant's rights of
defence;

— the Commission infringed Article 20 of the Basic Regulation
in failing to give proper disclosure to the applicant
in
the definitive measures
respect of
proposed by the Commission between 7 July and 28 July
2006;

the radical change of

— the contested regulation is vitiated by a manifest error of
assessment in respect of the extent and duration of the
injury relied on to justify the imposition of duties on the
applicant; and

— the contested regulation infringes Article 2(10) of the Basic
Regulation in respect of the need to make a ‘fair comparison’
between the export price and the normal value when asses-
sing the dumping margin.

(1) OJ 2006 L 275, p. 1.
(2) See Article 2(7)(b) and (c) of 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 21 December 2006 — Foshan City
Nanhai Golden Step Industrial v Council

(Case T-410/06)

(2007/C 42/70)

Language of the case: English

— order the Council to meet the applicant's costs of these

proceedings.

Pleas in law and main arguments

By the present application,
the applicant seeks annulment,
pursuant to Article 230 EC, of the contested regulation to the
imposes definitive anti-dumping duties on its
extent
exports to the European Union.

that

it

The applicant advances four pleas in law in support of
claims:

its

— The applicant submits that the Commission's calculation of
the profit margin to be used for the constructed value of the
applicant's normal value is vitiated by a manifest error and/
or infringes its rights of defence.

— Furthermore,

the applicant claims that

the Commission
allegedly breached the requirements of Article 3 of the Basic
Regulation and/or made a manifest error of assessment in
failing to take account of relevant information concerning
the structure of the market, and in particular the important
role played by independent intermediaries in the supply of
products manufactured by the applicant.

— According to the applicant, the Commission has further
infringed Article 20 of the Basic Regulation and/or essential
procedural requirements and/or
its rights of defence in
failing to give proper disclosure in respect of the radical
amendment of
the definitive measures proposed by the
Commission between 7 July and 28 July 2006.

— Finally, the applicant contends that the contested regulation
is further vitiated by a manifest error of assessment
in
respect of the extent and duration of the injury relied on to
justify a determination of material injury and the imposition
of duties on the applicant.

Action brought on 22 December 2006 — SO.GE.L.M.A. v
EAR

Parties

Applicant: Foshan City Nanhai Golden Step Industrial Co. Ltd
I. MacVay, solicitor, R.
(Hong Kong, China)
Thompson, QC and K. Beal, barrister)

(represented by:

Defendant: Council of the European Union

Parties

(Case T-411/06)

(2007/C 42/71)

Language of the case: Italian

Form of order sought

Applicant: SO.GE.L.M.A.
Cappelli, P. De Caterini, A. Bandini and A. Gironi, avvocati)

(Scandicci,

(represented by: E.

Italy)

— Annul Council Regulation (EC) No 1472/2006 insofar as it

applies to the applicant;

Defendant: European Agency for Reconstruction

24.2.2007

EN

Official Journal of the European Union

C 42/41

Form of order sought

The applicant claims that the Court should:

— annul the decisions of the EAR cancelling the works tender
procedure ‘Restoring of Unhindered Navigation (removal of
unexploded ordnance)
in the Inland Waterway Transport
System, Republic of Serbia, Serbia and Montenegro’ (Publi-
cation Reference No: EuropeAid/120694/D/W/YU, Project
No 05SER01 04 01) and launching a new tender procedure,
communicated by AER letter of 9 October 2006, Prot. D
(06)DG/MIL/EP 2715 and AER letter of 14 December 2006,
Prot. DG/mie/3313,
together with all other prior or
connected acts, including the decision excluding the appli-
in any case, order the European Agency for
cant, and,
Reconstruction to pay damages to the applicant
in the
amount specified in the application;

— order the European Agency for Reconstruction to pay the

costs.

Pleas in law and main arguments

The object of the tender procedure at issue in the present case
was the award of a public works contract for works consisting
in the identification and clearance of unexploded military
ordnance left over from the aerial bombardment carried out by
NATO in 1999, with a view to re-opening the waterways of the
Danube and the Sava for inland navigation.

After its tender had been found to be the most suitable, the
applicant received a first request for clarifications, which were
provided without delay. In particular, precise reasons were given
for the presence, as leader of the aquatic survey team, of a
person who had high qualifications but whose work experience
fell short of that specified in the call for tenders.

Following professional contacts with a consultancy which had
provided the European Agency for Reconstruction with advice
in respect of the tender procedure in question, on the basis of
which the applicant was led to expect a positive outcome, the
applicant was informed that the tender procedure had been
cancelled for lack of tenders which were technically suitable, and
it became clear that there was an intention to issue a new call
for tenders.

In support of its claims, the applicant alleges infringement of
Article 41 of Directive 2004/18 of the European Parliament and
of the Council of 31 March 2004 on the coordination of proce-
dures for the award of public works contracts, public supply
contracts and public service contracts (1) and, more generally,
breach of the principles that govern Community legislation on
public procurement procedures, in so far as the annulment of
the tendering procedure in question was the result of a choice
made without careful reflection and without an in-depth assess-
ment of the public interest to be safeguarded. Secondly, the
applicant alleges failure to comply with the obligation to state
reasons.

(1) OJ 2004 L 134, 30.4.2004, p. 114.

Action brought on 29 December 2006 — Vitro Corpora-
tivo v OHIM — VKR Holding (Vitro)

(Case T-412/06)

(2007/C 42/72)

Language in which the application was lodged: Spanish

Parties

Applicant: Vitro Corporativo, S.A. de C.V.
J. Botella Reyna, lawyer)

(represented by:

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

Other party to the proceedings before the Board of Appeal of OHIM:
VKR Holding A/S

Form of order sought

— Declare that the Community trade mark VITRO be registered

for goods in Class 19

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Figurative mark ‘Vitro’
(CTR
application No 2 669 521) for goods and services in Classes 1,
7, 8, 9, 11, 12, 16, 17, 19, 20, 21, 22, 27, 30, 35, 39, 40, 41,
42 and 43.

Proprietor of the mark or sign cited in the opposition proceedings:
VKR Holding A/S

Mark or sign cited in opposition: Danish (No 1956 1415 VR),
German (No 725 452), United Kingdom (No 1 436 897) and
Community (No 651 745) word marks ‘VITRAL’, for goods,
inter alia, in Class 19 (building glass, window glass, safety and
isolating glass), in respect of which the opposition proceedings
were lodged.

Decision of the Opposition Division: The opposition was upheld
and the Community trade mark was refused for goods in
Class 19.

Decision of the Board of Appeal: The appeal was dismissed.

Pleas in law: Incorrect application of Article 8(1)(b) of Regulation
No 40/94 on the Community trade mark.