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Action brought on 24 Avril 2009 - Gem-Year et Jinn-Well Auto-Parts (Zhejiang) v Council
(Case T-172/09)
Language of the case: English
Parties
Applicants: Gem-Year Industry Co. Ltd and Jinn-Well Auto-Parts (Zhejiang) Co. Ltd (represented by: K. Adamantopoulos and Y. Melin, lawyers)
Defendant: Council of the European Union
Form of order sought
Annul Council Regulation (EC) No 91/2009 of 26 January 2009 imposing a definitive anti-dumping duty on imports of certain iron and steel fasteners originating in the People's Republic of China, insofar as
it made a manifest error in the assessment of the facts in order to conclude that the complaining community producers had standing, in breach of Articles 5(1) and 5(4) of the basic Regulation;
it breached Article 1(1), (2) and (4), Article 2(8) and Article 5(2) and (10) of the Basic Regulation by imposing anti-dumping duties against several different products;
it breached Article 3(3) and (4) of the basic Regulation in that it finds that the Community industry suffered material injury on the basis of a manifest error in the assessment of the facts of the case;
it unjustifiably rejects the market economy treatment claims of Chinese exporting producers in breach of Article 2(7)(c), second part of the first indent, of the basic Regulation;
it is in breach of Article 2(7)(c), as interpreted in line with the WTO Agreement and paragraph 15 of China's Protocol of Accession to the WTO, in that it rejected the claim for market economy treatment of producers in the fastener industry based on a situation prevailing in another industry ;
its findings are based on insufficient information in breach of the duty of examining carefully and impartially all the relevant aspects of each individual case as guaranteed by the Community legal order in administrative procedures;
it is in breach of Articles 1(1) and 1(2), Article 2, Article 3(1), Article 5, Article 6, Article 8, Article 10(1), Article 11 and Article 15 of the basic anti-subsidy Regulation as it uses the rejection of market economy treatment in order to countervail subsidies;
order the Council to bear the costs of these proceedings
Pleas in law and main arguments
By means of their application, the applicants seek the annulment of Regulation (EC) No 91/2009 of 26 January 2009 imposing a definitive anti-dumping duty on imports of certain iron and steel fasteners originating in the People's Republic of China
1, on the basis of the following grounds:
The applicants submit that the Council made a manifest error in the assessment of the facts applied in the case in order to conclude that the complainants had standing under Articles 5(1) and 5(4) of the basic regulation
2, as it should allegedly have taken into account the margin of error in the statistics it used for calculating the total community production and should have corrected this figure accordingly. Moreover, the applicants claim that the contested regulation is in breach of Articles 1(1), (2) and (4), 2(8), 5(2) and (10) of the basic regulation by imposing anti-dumping duties against several different products, where an anti-dumping investigation can cover no more than one single product. Further, the applicants put forward that the Council made a manifest error in the assessment of the facts of the case and breached Article 3(3) and (4) of the basic regulation when it concluded in recital 161 of the contested regulation that the Community industry suffered material injury, whereas this finding rests solely on one negative injury indicator, on one contradictory finding, and on several speculative assessments.
The applicants also argue that the contested regulation is in breach of the second part of the first indent of Article 2(7)(c), as it rejected the claim for market economy treatment of Chinese exporting producers on the ground that their cost of major inputs did not reflect international, non-distorted market price, whereas this provision simply requires companies claiming market economy treatment to demonstrate that they purchase their main input at market value.
Furthermore, it is submitted that the contested regulation is in breach of Article 2(7)(c), as interpreted in line with the WTO Agreement and paragraph 15 of China's Protocol of Accession to the WTO, in that it rejected the claim for market economy treatment of producers in the fastener industry based on a situation prevailing in another industry. In addition, the applicants contend that the findings of the contested regulation are based on insufficient information in breach of the duty of examining carefully and impartially all the relevant aspects of each individual case as guaranteed by the Community legal order in administrative procedures.
Finally, the applicants claim that the contested regulation is in breach of Articles 1(1) and 1(2), Article 2, Article 3(1) of the anti-subsidy basic regulation
3 as it did not determine whether subsidies found to exist during the anti-dumping investigation were subsidies as defined in those articles; in other words, that a financial contribution took place, was specific, conferred a benefit and that the EU industry was injured as a consequence of it. Similarly, according to the applicants, the Commission never analysed the injury, in accordance with Article 8 of the anti-subsidy basic regulation, or calculated the benefit conferred upon the recipient as mandated by Articles 5 and 6 of the said regulation. In addition, the applicants claim that the Commission did not follow the procedures set out in Articles 10(1) and 11, nor did it establish, on the basis of facts, the existence of countervailable subsidies and injury caused thereof as required by Article 15 of the basic anti-subsidy regulation as it uses the rejection of market economy treatment in order to countervail subsidies.