Action brought on 21 July 2011 - BP Products North America v Council

(Case T-385/11)

Language of the case: English

Parties

Applicant: BP Products North America, Inc. (Naperville, United States) (represented by: H.-J. Prieß and B. Sachs, lawyers and C. Farrar, solicitor)

Defendant: Council of the European Union

Form of order sought

Annul Article 2 of Council Implementing Regulation (EU) No 443/2011¹ of 5 May 2011, insofar as it affects the applicant;

Annul Article 2 of Council Implementing Regulation (EU) No 444/2011² of 5 May 2011, insofar as it affects the applicant; and

Order the defendant to pay the applicant's costs pursuant to Article 87 of the Rules of Procedure of the General Court.

Pleas in law and main arguments

In support of the action, the applicant relies on four pleas in law.

1.    First plea in law, alleging violation of the basic anti-dumping and countervailing duty regulations by extending Council Regulations (EC) No 598/2009 and No 599/2009 on biodiesel imports originating in the United States of America³ to biodiesel products not originally covered by the anti-dumping and countervailing duty regulations, rather than by carrying out a "de novo" investigation, even though the blends now subject to Council Implementing Regulation (EU) No 444/2011 were specifically excluded from the scope of Council Regulations (EC) No 598/2009 and No 599/2009.

2.    Second plea in law, alleging manifest errors of appraisal as regards the assessment of facts, in particular with regard to the fact that the lower blended biodiesel products (and not subject to any duty) cannot be re-converted to higher blends (that are subject to the duty), so that circumvention is actually not possible, and as regards an alleged circumvention by the applicant by manifestly erring the economic justifications for the exports by the applicant.

3.    Third plea in law, alleging violation of an essential procedural requirement by failing to provide adequate reasoning in Council Implementing Regulation (EU) No 444/2011 for the extension of the definitive duties to biodiesel products of blends of 20% and lower.

4.    Fourth plea in law, alleging violation of the basic European Union law principles of non-discrimination and good administration, by not according to the applicant the duty rate applicable to "cooperating companies" despite the fact that the applicant did fully cooperate.

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¹ - Council Implementing Regulation (EU) No 443/2011 of 5 May 2011 extending the definitive countervailing duty imposed by Regulation (EC) No 598/2009 on imports of biodiesel originating in the United States of America to imports of biodiesel consigned from Canada, whether declared as originating in Canada or not, and extending the definitive countervailing duty imposed by Regulation (EC) No 598/2009 to imports of biodiesel in a blend containing by weight 20 % or less of biodiesel originating in the United States of America, and terminating the investigation in respect of imports consigned from Singapore (OJ 2011 L 122, p. 1)

² - Council Implementing Regulation (EU) No 444/2011 of 5 May 2011 extending the definitive anti-dumping duty imposed by Regulation (EC) No 599/2009 on imports of biodiesel originating in the United States of America to imports of biodiesel consigned from Canada, whether declared as originating in Canada or not, and extending the definitive anti-dumping duty imposed by Regulation (EC) No 599/2009 to imports of biodiesel in a blend containing by weight 20 % or less of biodiesel originating in the United States of America, and terminating the investigation in respect of imports consigned from Singapore (OJ 2011 L 122, p. 12)

³ - Council Regulation (EC) No 598/2009 of 7 July 2009 imposing a definitive countervailing duty and collecting definitively the provisional duty imposed on imports of biodiesel originating in the United States of America (OJ 2009 L 179, p. 1) and Council Regulation (EC) No 599/2009 of 7 July 2009 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of biodiesel originating in the United States of America (OJ 2009 L 179, p. 26)