Judgment of the General Court (Seventh Chamber) of 11 October 2012 — Novatex v Council

(Case T‑556/10)

Subsidies — Imports of certain types of polyethylene terephthalate originating in Iran, Pakistan and the United Arab Emirates — Definitive countervailing duty and definitive collection of provisional duty — Article 3(1) and (2), Article 6(b), and Article 7(2) of Regulation (EC) No 597/2009

1.                     Common commercial policy — Protection against subsidisation practices of non-Member States — Discretion of the institutions — Judicial review — Limits (Council Regulation No 597/2009) (see para. 35)

2.                     Common commercial policy — Protection against subsidisation practices of non-Member States — Subsidy — Financial contribution by the public authorities of the country of origin or exportation — General system of taxation — Factors to be taken into consideration for the purposes of comparing the tax treatment of revenue from domestic sales and from export sales (1994 Agreement on subsidies and compensatory measures, Art. 1(1)(a)(ii); Council Regulation No 597/2009, Arts 2 to 4) (see paras 36, 40-43)

3.                     Common commercial policy — Protection against subsidisation practices of non-Member States — Subsidy — Financial contribution by the public authorities of the country of origin or exportation — Definition — Tax regime involving a lower rate of tax on profits from exports than on profits from domestic sales — Inclusion (Council Regulation No 597/2009, Art. 3(1)(a)(ii)) (see paras 56-58, 63, 65)

4.                     Common commercial policy — Protection against subsidisation practices of non-Member States — Course of the investigation — Powers of the Commission — Limits — Obligation of the undertakings concerned by a complaint to cooperate — Scope (Council Regulation No 597/2009, Arts 11(2) and 26) (see paras 81, 87)

5.                     Common commercial policy — Protection against subsidisation practices of non-Member States — Subsidy — Loan granted by public authorities — Existence of an advantage conferred by the public authorities — Conditions (1994 Agreement on subsidies and compensatory measures, Art. 14(b)); Council Regulation No 597/2009, Arts 3(2) and 6(b)) (see paras 119, 124-126)

6.                     Actions for annulment — Jurisdiction of the EU judicature — Power of variation — Exclusion (Art. 264 TFEU) (see paras 152-154)

Re:

APPLICATION for annulment of Council Implementing Regulation (EU) No 857/2010 of 27 September 2010 imposing a definitive countervailing duty and collecting definitely the provisional duty imposed on imports of certain types of polyethylene terephthalate originating in Iran, Pakistan and the United Arab Emirates (OJ 2010 L 254, p. 10), in so far as it concerns the applicant.

Operative part

The Court:

1. Annuls Article 1 of Council Implementing Regulation (EU) No 857/2010 of 27 September 2010 imposing a definitive countervailing duty and collecting definitively the provisional duty imposed on imports of certain types of polyethylene terephthalate originating in Iran, Pakistan and the United Arab Emirates in so far as it concerns Novatex Ltd, in so far as the definitive countervailing duty for imports of certain types of polyethylene terephthalate into the European Union exceeds that applicable in the absence of the error concerning the amount indicated in line 74 of the 2008 tax return;

2. Dismisses the action as to the remainder;

3. Orders the Council of the European Union to pay its own costs and 50% of those incurred by Novatex. Novatex is ordered to bear 50% of its own costs. The European Commission is ordered to bear its own costs.