Notice for the OJ

 

Action brought on 5 October 2005 S Giant (China) / Council

(Case T-372/05)

Language of the case: English

Parties

Applicant(s): Giant (China) Co., Ltd (Kunshan City, People's Republic of China) [represented by: P. De Baere, lawyer]

Defendant(s): Council of the European Union

Form of order sought

Annul Council Regulation (EC) No 1095/2005¹, of 12 July 2005, imposing a definitive anti-dumping duty on imports of bicycles originating in Vietnam, and amending Regulation (EC) No 1524/2000, imposing a definitive anti-dumping duty on imports of bicycles originating in the People's Republic of China, insofar as it rejects the applicant's market economy status claim in breach of Article 2(7)(b), in connection with Article 2(7)(c), of Council Regulation 384/96 ("the basic regulation"), violates Article 11(10), of the basic regulation, in that it rejects the applicant's claim for non-deduction of the anti-dumping duty from the constructed export price and violates Article 253 EC, inasmuch as it fails to state reasons;

order the Council to bear the costs of the proceedings.

Pleas in law and main arguments

The applicant, a limited company incorporated under Chinese law, mainly produces bicycles and parts thereof, exporting to the Community. Being affected by the contested measures, the applicant submitted an application to the Commission, requesting to benefit from market economy status ("MES"). The applicant also submitted anti-dumping questionnaires and engaged in correspondence with the Commission raising a number of issues.

The applicant now challenges the contested Regulation, first addressing the rejection of its MES claim. According to the applicant, its claim was rejected on the consideration that, due to the existence of an export licensing system, the applicant's decisions regarding sales prices and quantities, were not taken in response to market signals and without significant state interference. The applicant argues that Article 2(7)(b), of the basic regulation, should be interpreted in the sense that MES should be granted if in a particular case market economy conditions prevail, notwithstanding the existence of national legislation or mechanisms not conforming with those in place in market economies. Since the contested Regulation failed to address its own particular situation, the applicant considers that there has been a manifest error of assessment leading to a violation of Article 2(7)(b). In the same context, the applicant invokes a violation of Article 253 EC inasmuch as the contested Regulation allegedly fails to state the reasons for which the MES claim was rejected.

The applicant also challenges the rejection of his claim that the amount of the anti-dumping duty should not be deducted from the constructed export price, as a cost between importation and resale, in accordance with Article 11(10) of the basic regulation. The applicant considers that the Council erred in law, insofar as it considered that there was no movement in the resale and subsequent selling prices by reference to the applicant's export prices established in the previous investigations. According to the applicant, there was no export price established for it in previous investigations. Further, the applicant argues that Article 11(10) does not require the movement to be assessed by reference to export prices established in the previous investigations.

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¹ - OJ L 183, p.1