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Action brought on 23 March 2009 - Zhejiang Xinshiji Foods et Hubei Xinshiji Foods v Council

(Case T-122/09)

Language of the case: English

Parties

Applicants: Zhejiang Xinshiji Foods Co. Ltd, Hubei Xinshiji Foods Co. Ltd (represented by: F. Carlin, Barrister, A. MacGregor, Solicitor, N. Niejahr and Q. Azau, lawyers)

Defendant: Council of the European Union

Form of order sought

annul the Regulation to the extent that it imposes anti-dumping duties on products produced and exported by the applicants;

order the Council of the European Union to pay its own costs and the applicants' costs in connection with these proceedings.

Pleas in law and main arguments

By means of their application, the applicants seek the annulment, pursuant to Article 230 EC, of Council Regulation (EC) No 1355/2008 of 18 December 2008 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain prepared or preserved citrus fruits (namely mandarins, etc.) originating in the People's Republic of China¹ ("the Definitive Regulation"), insofar as it concerns the applicants.

The applicants submit that the Definitive Regulation should be annulled insofar as it concerns them because it violates the applicants' rights of defence, the duty to state reasons and breaches the principle of sound administration.

The applicants claim that their rights of defence were violated,

(i) because of the failure to provide timely disclosure of essential facts, as required by Article 20(4) of Council Regulation (EC) 384/96², as well as the failure to provide adequate explanations as to inconsistencies in the Community industry's sales volumes, with the effect that the applicants could not effectively make their views known or defend their interest in a meaningful way.

(ii) in the context of the determination of injury where the Commission failed :

(a) to answer the applicants' questions surrounding data inconsistencies in the Community industry's sales volumes in time for the applicants' to make known their views before the Council adopted the Definitive Regulation;

(b) to provide the applicants with the requested explanations in relation to the refusal to take due account of the impact of the prices of raw materials;

(c) to explain how the Commission had calculated the 2% uplift for import costs and importer's margin, and

(iii) by a manifest error of assessment in failing to take into account significant inconsistencies in relation to the Community industry's sales data in determining injury.

The applicants submit that the Definitive Regulation also violates Article 253 EC by failing to state the reasons on which it was based regarding an essential element of fact, namely the 2% uplift for import costs and importer's margin, which is relevant to the findings made in the Definitive Regulation that led to the imposition of the definitive anti-dumping duties applicable to the applicants.

Finally, the applicants contend that, in view of the representations made by the applicants throughout the procedure, pointing to the various failures of the Commission to properly explain the factual basis on which the Commission was proposing to adopt definitive anti-dumping measures and to properly safeguard the applicants' rights of defence, the Council breached the principle of sound administration when adopting the Definitive Regulation as proposed by the Commission.

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¹ - OJ 2008 L 350, p. 35

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 1996 L 56, p. 1)