Notice for the OJ

 

Action brought on 8 August 2003 by Van Mannekus & Co. B.V. against the Council of the European Union

    (Case T-278/03)

    (Language of the case: German)

An action against the Council of the European Union was brought before the Court of First Instance of the European Communities on 8 August 2003 by Van Mannekus & Co. B.V., Schiedam (Netherlands), represented by H. Bleier, lawyer.

The applicant claims that the Court should:

(annul Council Regulation (EC) No 985/2003 of 5 June 2003 amending the antidumping duty measures imposed by Council Regulation (EC) No 1334/1999 on imports of magnesium oxide originating in the People's Republic of China; ¹

(order the Council of the European Union to pay all the costs.

Pleas in law and main arguments

By the contested regulation the Council altered the nature of the antidumping duties on imports of magnesium oxide originating in the People's Republic of China on the basis of a partial interim review. The applicant participated in the review procedure which preceded the contested regulation as an importer. It claims that the regulation infringes substantive Community law in that Council Regulation (EC) No 384/96 ² was misapplied to a significant degree.

The applicant argues that it was a misuse of discretion to initiate a partial interim review ex officio at all. The grounds set out in the Commission's notice do not in any event justify a review. The Commission claimed that the fact that there was no differentiation between sales made to related parties and sales made to unrelated parties and between direct and indirect sales could "lead to difficulties in applying the legal provisions". That is not true however. There could be no more difficulty in applying the legal provision.

Further the statement of reasons given in the contested regulation is different from that which had been set out in the notice relating to the initiation of the partial interim review. That means that there was either a lack of formal reasons or a lack of sufficient grounds for altering the type of duty substantively. It was a misuse of discretion to differentiate in the contested regulation between trade with related parties and trade with unrelated parties and between direct and indirect sales in the Community.

The applicant further claims that the contested regulation infringes Regulation (EC) No 384/96 because the partial interim review does not justify altering the amount of duty. According to the notice the review should be confined to the nature of the applicable measure but it went further than that. In addition the amount of the duty was set entirely arbitrarily. Regulation (EC) No 384/96 does not provide for the possibility of using the results of reviews that are over 12 years old. It does not allow the results of reviews that are older than five years to be used.

Finally no specific dumping margin was laid down in the final review and it is impossible to see how a duty of 27.1% could be arrived at based on that review.

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¹ - OJ L 143, p. 1.

² - Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ L 56, p. 1), most recently amended by Regulation (EC) No 1972/2002 (OJ L 305, p. 1).