Case T-1/07: Action brought on 2 January 2007 — Apache Footwear and Apache II Footwear v Council
Date: 2007-03-10
Institutions: Court of First Instance
Subjects: China, Council of the European Union, Viet Nam, action for annulment (EU), anti-dumping duty, footwear industry, import, originating product

C 56/30

EN

Official Journal of the European Union

10.3.2007

Action brought on 22 December 2006 — ZERO Industry v
OHIM — zero International Holding (zerorh+)

(Case T-400/06)

(2007/C 56/59)

Language in which the application was lodged: English

The applicant claims that the Board erred in its interpretation of
the above provision insofar as it didn't take into account the
visual, phonetic and conceptual differences between the goods
to which the conflicting trade marks relate.

Parties

Action brought on 2 January 2007 — Apache Footwear
and Apache II Footwear v Council

Applicant: ZERO Industry Srl (Como, Italy) (represented by: M.
Rapisardi, lawyer)

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

Other party to the proceedings before the Board of Appeal: zero Inter-
national Holding GmbH & Co. KG (Bremen, Germany)

(Case T-1/07)

(2007/C 56/60)

Language of the case: English

Form of order sought

Parties

— Annul decision R0958/2005-1 of the First Board of Appeal
of
the Office for Harmonisation in the Internal Market,
of 5 October 2006, notified to the applicant on 23 October
2006;

— definitively reject the opposition brought by the defendant
against the registration of Community trade mark applica-
tion No 2004547, on behalf of Zero Industry Srl;

— order the Office for Harmonisation in the Internal Market to
proceed with the registration of the CTM lodged by ZERO
Industry Srl;

— order the Office for Harmonisation in the Internal Market or
any unsuccessful party to pay,
jointly or severally, to the
applicant the costs, expenses and fees, incurred in both the
present proceedings and the opposition and appeal proceed-
ings before the Office for Harmonisation in the Internal
Market.

Pleas in law and main arguments

Applicants: Apache Footwear Ltd (Guangzhou, China) and
Apache II Footwear Ltd (Qingyuan, China) (represented by: O.
Prost and S. Ballschmiede, lawyers)

Defendant: Council of the European Union

Form of order sought

— Annul Article 1 of Council Regulation (EC) No 1472/2006
of 5 October 2006 (1), imposing a definitive anti-dumping
duty and collecting definitively the provisional duty imposed
on imports of certain footwear with uppers of
leather
originating in the People's Republic of China and Vietnam
as long as it imposes 16.5 % duty on imports of products
manufactured by the applicant;

— ask the Council to pay the costs.

Applicant for the Community trade mark: the applicant

Pleas in law and main arguments

Community trade mark concerned: the figurative mark ‘zerorh+’ for
the goods in classes 9, 18 and 25 — application No 2004547

Proprietor of the mark or sign cited in the opposition proceedings:
zero International Holding GmbH & Co. KG

Mark or sign cited: the national figurative mark ‘zero’ for goods
in classes 18 and 25 and the national word mark ‘zero’ for
goods in class 9

Decision of the Opposition Division: Opposition upheld

Decision of the Board of Appeal: Appeal dismissed

in law:

Pleas
No 40/94

Infringement of Article 8(1)(b) of Regulation

By the present application, the applicants seek partial annul-
ment, pursuant to Article 230(4) EC, of the contested regulation
to the extent that it imposes definitive anti-dumping duties on
their imports into the European Union.

The applicants advance three pleas in law in support of their
claims:

First, the applicants submit that the Council, when examining
whether the applicants met the criteria to be granted Market
Economy Treatment (‘MET’), pursuant to Article 2(7)(b) and (c)
of Regulation (EC) No 384/96 (hereinafter,
‘the Basic Regu-
lation’), violated the latter, as well as its obligation of motivation
under Article 253 EC, insofar as it allegedly failed to examine
whether the applicants were subject to significant state interfer-
ence.

10.3.2007

EN

Official Journal of the European Union

C 56/31

Second, the applicants claim that the Council, by refusing to
take into account certain additional key information, violated its
obligation of due diligence and proper administration, and
consequently made a manifest error of appraisal.

Third, the applicants contend that the Council by refusing to
exclude children's footwear from the scope of the measures at
the stage of the definitive regulation, violated Article 21 of the
Basic Regulation, its obligation of motivation under Article 253
EC and made a manifest error of appraisal.

(1) OJ L 275, 2006, p. 1.

Regarding the inclusion of the ‘criterion of experience’ as one of
the criteria for the contract award, while that criterion is not
expressly provided for in the applicable rules,
it is submitted
that Community case-law allows for that possibility, and that
the use of that criterion can in no way constitute a grave and
manifest infringement of the Community rules, or, in any event,
can only amount to an excusable error of law on account of
lack of clarity of the applicable rule.

On the other hand, the applicant disputes that the use of the
system of average prices, used during the analysis of the most
economically advantageous tender
in the projects awarded,
infringes the principle of equal treatment, by discriminating in
favour of excessively low tenders compared with other more
expensive tenders.

the

alternative,

In the
also alleges breach of
applicant
Article H (2) of Annex II to Regulation (EC) No 1164/94, (2) on
legitimate
the ground of
expectations and legal certainty; and,
in respect of Contract
No 2000/GV/2005, breach of the principle of proportionality,
as well as breach of Article 19 of the Directive No 93/37, cited
above.

the principles of

infringement of

(1) Council Directive 93/37/EEC of 14 June 1993 concerning the coor-
dination of procedures for the award of public works contracts (OJ L
199, 9.8.1993, p. 54).

(2) Council Regulation (EC) No 1164/94 of 16 May 1994 establishing a

Cohesion Fund (OJ L 130, 25.5.1994, p. 1).

Action brought on 2 February 2007 — Kingdom of Spain
v Commission of the European Communities

(Case T-2/07)

(2007/C 56/61)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by:
Cárcamo)

J.M. Rodríguez

Defendant: Commission of the European Communities

Action brought on 2 January 2007 — Spain v Commission

Form of order sought

— Annul Decision C(2006) 5102 of 20 October 2006, in that
it reduces the assistance from the Cohesion Fund to the
group of projects No 2001 ES 16 C PE 050 (Clearance of
the hydrographical basin of the Júcar 2001-Group2)

— Order the Commission to pay the costs.

Pleas in law and main arguments

The present action is directed at Commission Decision C(2006)
5103 of 20 October 2006, which reduced the assistance from
the Cohesion Fund to the group of projects No 2001 ES 16 C
PE 050, performed in Spain and designated as ‘Clearance of the
hydrographical basin of the Júcar 2001-Group 2’.

It concerns a comprehensive group of three different projects
which received assistance of EUR 11 266 701, which was
reduced by virtue of the impugned decision by EUR 1 900 281.

In support of its claims, the applicant alleges incorrect and inco-
herent interpretation of Directive 92/17/EEC (1), in so far as it
relates to the criterion of experience (Article 30(1) and (2)) and
to the use of the system of average prices (Article 30(1)).

(Case T-3/07)

(2007/C 56/62)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by:
Cárcamo)

J.M. Rodríguez

Defendant: Commission of the European Communities

Form of order sought

— Annul Decision C(2006) 5103 in full, which seeks to apply
financial corrections to five projects carried out in Anda-
lucia:

— when the Court considers the first of the pleas alleged, it
must annul the decision in part, reducing the amount of
the corrections by 1 136 320 EUR,