Action brought on 18 February 2014 – PT Ciliandra Perkasa v Council

(Case T-120/14)

Language of the case: English

Parties

Applicant: PT Ciliandra Perkasa (West Jakarta, Indonesia) (represented by: F. Graafsma and J. Cornelis, lawyers)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

Annul Council Implementing Regulation (EU) No 1194/2013 of 19 November 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of biodiesel originating in Argentina and Indonesia (OJ 2013 L 315, p. 2), insofar as it imposes an anti-dumping duty on the applicant; and

Order the defendant to pay the applicant’s costs.

Pleas in law and main arguments

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

First plea in law, alleging that the Council and the Commission (the “Institutions”) committed a manifest error of assessment in finding that the applicant's Crude Palm Oil (“CPO”) purchase prices are distorted. More specifically, the Institutions failed to take into consideration that the applicant is a fully vertically integrated biodiesel producer and that, therefore, any alleged effect of the Differential Export Tax (“DET”) system does not apply to it. In addition, the Institutions committed a manifest error of assessment in (1) not finding that the applicant and its related CPO suppliers constitute a single legal entity for all practical and even legal purposes and (2) finding that the applicant's CPO purchase prices from related companies were not at arm's length.

Second plea in law, alleging that the WTO Anti-Dumping Agreement does not allow to adjust costs for the simple reason that these are lower than in other markets or are “distorted” due to government intervention. Article 2 (5) of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51; hereafter referred to as “the basic Regulation”) should therefore be ruled inapplicable insofar as it provides for such a possibility to adjust costs.

Third plea in law, alleging that the adjustment to the costs of CPO in the present case constitutes a violation of Article 2(5) of the basic Regulation. More specifically, the applicant submits the following claims:

The necessary evidence on the basis of which it was concluded that the CPO prices on the Indonesian market are distorted is missing and the Institutions committed a manifest error of assessment in finding that CPO prices on the Indonesian market are distorted;

By using the reference export price (“HPE”) to adjust the costs, the Institutions did not adjust the costs on "a reasonable basis" as mandated by Article 2(5) of the basic Regulation and/or on the basis of “sources which are unaffected by such distortions”; and

Article 2(5) of the basic Regulation does not allow to adjust costs in situations in which prices are simply and allegedly “low”.

Fourth plea in law, alleging that in determining the reasonable profit margin, the Council did not comply with the legal obligation contained in Article 2(6)(c) of the basic Regulation. This Article requires that the amount of reasonable profit cannot exceed the profit normally realized by other exporters or producers on sales of products of the same general category in the domestic market of the country of origin.

Fifth plea in law, alleging that the Institutions have failed to consider information and arguments submitted by the applicant in the course of the investigation. By doing so, they have not only breached their obligation of due diligence and proper administration by not carefully and impartially examining all relevant evidence before them but also failed to comply with the obligation contained in Article 20 (5) of the basic Regulation as well as with the obligation to provide reasons as mandated by Article 253 TEC (Article 296 TFEU).