Action brought on 19 April 2006 - Usha Martin v Council and Commission

(Case T-119/06)

Language of the case: English

Parties

Applicant: Usha Martin Ltd (Calcutta, India) (represented by: K. Adamantopoulos, lawyer and J. Branton, Solicitor)

Defendants: Council of the European Union and Commission of the European Communities

Form of order sought

A declaration, pursuant to Article 230 of the Treaty establishing the European Communities, that Commission Decision of 22 December 2005 amending Commission Decision 1999/572/EC accepting undertakings in connection with the anti-dumping proceedings concerning imports of steel wire rope and cables originating, inter alia, in India, published on 26 January 2006 in the Official Journal of the European Union, OJ L22/54, 26.01.2006 ('contested decision') is annulled insofar as it relates to the applicant and withdraws a minimum price undertaking previously in force.

A declaration, pursuant to Article 230 of the Treaty establishing the European Communities, that Council Regulation (EC) No 121/2006 of 23 January 2006 amending Regulation (EC) No. 1858/2005 imposing a definitive anti-dumping duty on imports of steel ropes and cables originating, inter alia, in India, published on 26 January 2006 in the Official Journal of the European Union, OJ L22/1, 26.01.2006 is annulled insofar as it relates to the applicant and gives effect to the contested decision withdrawing a minimum price undertaking previously held by the applicant.

An order that the costs of and occasioned by these proceedings be borne by the respondent.

Pleas in law and main arguments

The applicant is an exporting producer of steel wire ropes in India exporting to the European Union.

The Commission had by decision of 13 August 1999 ¹ accepted certain minimum price undertakings offered by among others the applicant in the framework of anti-dumping proceedings concerning imports of steel wire ropes and cables originating in e.g. India.

By Decision 2006/38 ² the Commission withdrew the acceptance of the price undertaking offered by the applicant on the grounds, according to the applicant, that it had failed to report sales outside the scope of the price undertaking and claimed Dubai origin on steel wire ropes and cables from Dubai when in fact the origin should have been Indian due to insufficient further working of Indian raw material in Dubai. By Council Regulation No 121/2006 ³ a definitive anti-dumping duty was imposed giving effect to the Commission´s decision.

Concerning the failure to report sales outside the scope of the minimum price undertaking, the applicant alleges it relates to a human error and claims a violation of the principle of proportionality as it is not a material breach of the price undertaking and should therefore only result in instructions not to commit such a breach in the future and not in a withdrawal of the price undertaking. The applicant further submits that no material harm was done to the Community industry.

Concerning the claimed Dubai origin, the applicant alleges the institutions have erred in law by making an incorrect origin analysis as the Commission allegedly used the criterion whether or not there was a change in the tariff heading of the product concerned, whereas the applicant finds that the relevant criteria are the following:

i)    Last substantial process or operation;

ii)    the operation must be economically justified;

iii)    the operation must be carried out in an undertaking equipped for the purpose; and

iv)    the operation must result in the manufacture of a new product or represent an important stage of manufacture.

Furthermore, there were less onerous sanctions than withdrawing the price undertaking, such as the reclaiming of anti-dumping duty by the Member States´ customs authorities or making it a condition that exports from Dubai of ropes made from Indian strand had stopped.

The applicant therefore invokes an error of law, lack of reasoning, misuse of powers and a violation of the principle of proportionality.

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¹ - Commission Decision 1999/572/EC of 13 August 1999 accepting undertakings offered in connection with the anti-dumping proceedings concerning imports of steel wire ropes and cables originating in the People's Republic of China, Hungary, India, the Republic of Korea, Mexico, Poland, South Africa and Ukraine (OJ 1999 L 217, p. .63).

² - Commission Decision 2006/38/EC of 22 December 2005 amending Commission Decision 1999/572/EC accepting undertakings offered in connection with the anti-dumping proceedings concerning imports of steel wire ropes and cables originating, inter alia , in India (JO 2006 L 22, p. 54).

³ - Council Regulation (EC) No 121/2006 of 23 January 2006 amending Regulation (EC) No 1858/2005 imposing a definitive anti-dumping duty on imports of steel ropes and cables originating, inter alia , in India (JO 2006 L 22, p. 1).