CELEX: C2002/289/53
Language: en
Date: 2002-11-23 00:00:00
Title: Case T-278/02: Action brought on 10 September 2002 by Dyson Limited against the Office for the Harmonisation in the Internal Market

C 289/28                 EN                      Official Journal of the European Communities                                   23.11.2002
technique’. Using this technique, the transactions of the                   Pleas in law and main arguments
applicants that are made at a price higher then the average
price, are brought down to a price equal to the average price.
According to the applicants, the Commission did not apply                   The applicant is an association bringing together more than
the average-to-transaction methodology correctly as a result                230 multinational companies, who together have invested
of using the ‘zeroing technique’. The applicants submit that                hundreds of millions of euros in the establishment of coordi-
the objective of the average-to-transaction methodology is to               nation centres in Belgium, based on legislation dating from the
ensure a fair comparison and not to yield higher dumping                    early 1980s permitting the establishment of coordination
margins.                                                                    centres for multinational companies. It explains that this
                                                                            legislation was found by the Commission on two separate
                                                                            occasions in 1984 and 1987 to fall outside Community rules
                                                                            on state aids and that, encouraged by these findings, the
( 1) Commission Regulation (EC) No 2479/2001 of 17 December
                                                                            coordination centres invested in Belgium and have, over the
     2001 imposing a provisional anti-dumping duty on imports of
     recordable compact disks originating in Taiwan (OJ L 334, p. 8).
                                                                            last 15 years, significantly expanded their presence there.
( 2) Council Regulation (EC) No 1050/2002 of 13 June 2002 imposing
     a definitive anti-dumping duty and collecting definitively the
     provisional duty imposed on imports of recordable compact disks        The applicant states that the Commission’s decision to initiate
     originating in Taiwan (OJ L 160, p. 2).                                the procedure laid down in Article 88(2) EC in respect of this
( 3) Council Regulation (EC) No 384/96 of 22 December 1995 on               Belgian legislation (the contested decision) abruptly, arbitrarily
     protection against dumped imports from countries not members           and without any adequate reasoning re-classifies it as an aid
     of the European Community (OJ 1996, L 56, p. 1).                       within the meaning of Article 87(1) and reaches preliminary
                                                                            negative conclusions as to its compatibility with the common
                                                                            market, thereby ‘at a stroke’ removing legal certainty and
                                                                            infringing the legitimate expectations of the Belgian Coordi-
                                                                            nation Centres.
                                                                            The applicant submits that the Commission’s decision is
                                                                            unlawful, being in breach of Article 1(b)(v) of Regulation 659/
                                                                            1999, and has no other basis in Community law. The
                                                                            Commission’s alternative legal basis for its decision to the
Action brought on 12 September 2002 by Forum 187 asbl                       effect that it is entitled to reverse a decision taken 15 years
   against the Commission of the European Communities                       earlier (either under Article 1(b)(v) or under general adminis-
                                                                            trative principles) is likewise unfounded in Community law
                                                                            and should be annulled. In particular, this alternative legal
                          (Case T-276/02)                                   basis for the Commission decision infringes the principles of
                                                                            legal certainty and legitimate expectations. The applicant
                                                                            considers therefore that, especially taking into account the
                          (2002/C 289/52)                                   novel legal basis upon which the decision purports to be taken
                                                                            and the substantial economic interests involved, the decision
                                                                            is inadequately reasoned, in breach of Article 253, and should
                     (Language of the case: English)                        be annulled.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 12 September 2002 by Forum 187
asbl, Brussels, Belgium, represented by Mr Alastair Sutton,                 Action brought on 10 September 2002 by Dyson Limited
barrister and Mr James Killick, barrister.                                  against the Office for the Harmonisation in the Internal
                                                                                                          Market
The applicant claims that the Court should:                                                          (Case T-278/02)
—      Annul the Commission’s Notice of its decision to initiate                                     (2002/C 289/53)
       the procedure laid down in Article 88 (2) of the EC Treaty
       published in the OJ C 147, p. 2 on 20 June 2002.                                        (Language of the case: English)
—      Order the Commission to pay the costs.
                                                                            An action against the Office for the Harmonisation in the
—      Take such other or further steps as justice may require.             Internal Market was brought before the Court of First Instance
 ---pagebreak--- 23.11.2002             EN                      Official Journal of the European Communities                                        C 289/29
of the European Communities on 10 September 2002 by                       Communities on 15 September 2002 by J.J. Pikaart and
Dyson Limited, Malmesbury, Wiltshire (United Kingdom),                    Others, represented by M.J. van Dam and R.D. Ouwerling.
represented by D. Barron, C. Jones and C. Loweth, Lawyers.
                                                                          The applicant claims that the Court should:
The applicant claims that the Court should:
                                                                          (1) Annul the Decision of the European Commission of
—     annul the decision of the First Board of Appeal of the                      16 July 2002 (E1/L 02157 D(2002) 11796;
      Office of 2 July 2002 (Case R655/2001-1),
—     remit the decision to the Board for further consideration           (2) Order the defendants to pay the costs.
      in respect of the other absolute grounds of refusal raised
      by the examiner under Articles 7(1)(b) and 7(3) of
      Regulation No 40/94,
                                                                          Pleas in law and main arguments
—     order the Office to pay the applicant’s costs.
                                                                          The applicants own the inland waterway vessel Factotum. In
                                                                          1997 the mid and bow sections of the Factotum were replaced.
Pleas in law and main arguments                                           At the same time the tonnage of the Factotum was increased
                                                                          through lengthening the mid and bow sections. The old mid
                                                                          and bow sections were left unused by the applicants. The
Trade Mark:                   ‘Feature of goods’ consisting of            original plans to make this segment into a pusher craft were
                              ‘a transparent bin or collection            not put into effect because of a possible old-for-new obligation
                              chamber forming part of an exter-           pursuant to Regulation No 1101/89 ( 1).
                              nal surface of a vacuum cleaner’
                              — Application No 522144
                                                                          However, the Netherlands Fund imposed a levy on the
Goods and services:           ‘Apparatus for cleaning, polishing
                              and shampooing floors and car-              applicants pursuant to the old-for-new rule in Regu-
                              pets; vacuum cleaners; carpet               lation 1101/89. According to the applicants, the Factotum
                                                                          was hereby regarded as a newly constructed motor-vessel.
                              shampooers; floor polishers; parts
                              and fittings for all the aforesaid
                              goods’ in Class 7 of the Nice
                              classification).                            The applicants then asked the Commission how Article 8
                                                                          of Regulation 1101/89 should be applied in the specific
Decision       challenged     Refusal by the examiner to regis-           circumstances. The applicants’ present action contests the
before the Board of           ter.                                        interpretation given by the Commission.
Appeal:
Pleas in law:                 Misinterpretation                   of      The applicants submit that the alterations to the Factotum did
                              Article 7(1)(a) of Regulation No            not constitute a newly constructed vessel or any of the other
                              40/94.                                      cases set out in Article 8 of Regulation 1101/89. According to
                                                                          the applicants, the replacement of the section of the Factotum
                                                                          increases the total capacity of inland waterway vessels only in
                                                                          so far as it lengthens the Factotum. In other words, the old-
                                                                          for-new obligations should have been limited to the additional
                                                                          tonnage.
Action brought on 15 September 2002 by J.J. Pikaart and                   The applicants also submit that if the old mid and bow section
Others against Commission of the European Communities                     were to be converted to a pusher vessel, that is no reason to
                                                                          impose old-for-new obligation in respect of the motor-vessel
                                                                          tonnage of the Factotum. The applicants submit that this
                        (Case T-280/02)
                                                                          extension concerns pusher vessel tonnage for which the old-
                                                                          for-new obligations are less severe than those for motor-vessel
                        (2002/C 289/54)                                   tonnage.
                   (Language of the Case: Dutch)
                                                                          (1 ) Council Regulation (EEC) No 1101/89 of 27 April 1989 on
                                                                               structural improvements in inland waterway transport (OJ L 116,
                                                                               p. 25).
An action against Commission of the European Communities
was brought before the Court of First Instance of the European