Action brought on 20 January 2012 - PT Musim Mas v Council
(Case T-26/12)
Language of the case: English
Parties
Applicant: PT Perindustrian dan Perdagangan Musim Semi Mas (PT Musim Mas) (Medan, Indonesia) (represented by: D. Luff, lawyer)
Defendant: Council of the European Union
Form of order sought
Annul Articles 1 and 2 of Council implementing Regulation (EU) No 1138/2011 of 8 November 2011 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain fatty alcohols and their blends originating in India, Indonesia and Malaysia (OJ L 293, 11.11.2011, p. 1) (hereafter referred to as "the contested regulation"), in so far as it applies to the applicant;
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 General Court has jurisdiction to review Articles 1 and 2 of the contested regulation and their conformity with the Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (hereafter referred to as "the basic Regulation") and the general principles of European law.
Second plea in law, alleging
that the Council violated Article 2(10)(i) of the basic Regulation in that:
(a) it committed a manifest error in the assessment of facts and a misuse of powers by denying the existence of a "single economic entity" between the applicant and its related sales subsidiary in Singapore. During its investigation, the Commission deliberately ignored the facts put forward by the applicant concerning related companies;
(b) the Council did not provide sufficient evidence that the conditions of Article 2(10)(i) of the basic Regulation are met. It also committed a misuse of powers and a manifest error of assessment in the application of art 2(10)(i) of the basic Regulation by relying on incorrect or misinterpreted facts in order to establish that the conditions of the application of article 2(10)(i) of the basic Regulation were met. The Council ignored the facts that the applicant provided to the Commission, which the Commission verified, and which it did not rebut during any of the stages of the investigation procedure.
Third plea in law, alleging
that the Council violated first paragraph of Article 2(10) of the basic Regulation, since:
(a) it did not carry out a fair comparison between the export price and the normal value. It did not sufficiently demonstrate the differences in factors affecting prices and price comparability. By contrast with existing case law, it did not establish asymmetry between the normal value and the export price, in the absence of adjustment for commissions paid. The Council ignored the information and evidence provided in the applicant's Questionnaire Response and during its verification visits, which established that ICOF S also handles domestic sales. It failed to sufficiently indicate the reasons why it did not take that information and evidence into account. In doing so, the Council committed a manifest error in the assessment of facts and a misuse of powers. It did not sufficiently motivate the need for an adjustment and the latter is discriminatory towards the applicant,
(b) the Council did not avoid duplication in the deduction of profits from the export price. The Council deducted a first hypothetical margin of 5 % for ICOF E's profits, in application of Article 2(9) of the basic Regulation and a second hypothetical margin of 5 % for ICOF S' profits, thereby deducting an unreasonable total hypothetical margin of 10 % for an intra-group sales operation. This is obviously contrary to the facts and the practice for this type of business operations. The Commission, as investigative authority, should have known this. The Council therefore committed a manifest error in the assessment of facts regarding the intra-group profits and it made a wrong, discriminatory and unreasonable application of Article 2(10) of the basic Regulation.
Fourth plea in law, alleging
that the Council in its assessment of the applicant's situation violated the principle of sound administration. It ignored information, evidence and arguments provided to the Commission during the investigation. Instead, the Council relied on formal invoices, commissions paid and contracts taken out of their context in order to artificially inflate the applicant's dumping margin. The Commission and Council should have exercised better diligence and a more rigorous analysis in reaching their conclusions.
Fifth plea in law, alleging
that the contested regulation was adopted in violation of the principles of equality and non-discrimination. By applying an adjustment to the applicant's export price, the Council created an asymmetry between the export price and the normal value for the sole reason of the applicant's corporate and tax structure. Furthermore, the applicant suffered from a double deduction of a hypothetical profit margin by reason of that structure. Both situations are discriminatory against the applicant in relation to the other investigated companies, which sustain similar costs that have not been subject to adjustments.
____________1 - OJ L 343, 22.12.2009, p. 51