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Action brought on 5 Mars 2010 - Acron v Council

(Case T-118/10)

Language of the case: English

Parties

Applicant: Acron OAO (represented by: B. Evtimov, lawyer)

Defendant: Council of the European Union

Form of order sought

annul Council Implementing Regulation (EU) No 125112009 of 18 December 2009 amending Regulation (EC) No 1911/2006¹, in so far as it affects the applicant;

order the Council to pay the costs of and occasioned by these proceedings.

Pleas in law and main arguments

In support of its application, the applicant puts forward a single ground for annulment, divided in three pleas.

The applicant submits that the Union's institutions breached Articles 1 and 2 of the Basic Regulation, Article 11(9) of the Basic Regulation² when read together with Article 2 of the Basic Regulation and committed series of manifest errors of assessments, as a result of which they established an artificially increased constructed normal value for the applicant, and hence made an unwarranted finding of dumping.

In the first plea, the applicant challenges the rationale for the gas adjustment. More specifically, the applicant submits that the institutions erred in law and violated Article 2 (3) and (5) of the Basic Regulation, by disregarding a major part of the cost of production in the country of origin and/or by de facto applying a non-market economy methodology for establishing the major part of the applicant's normal value.

In the second plea, the applicant challenges the method used for the gas adjustment. The applicant submits that once having decided to proceed with the gas adjustment, the Commission violated Article 2(5), second sentence, of the Basic Regulation and/or made a manifest error of appreciation and showed a lack of reasoning, by making the gas adjustment on the basis of the price of Russian gas at Waidhaus, Germany, by failing to consider a penalised market sharing cartel in respect of Russian gas coming via Waidhaus, and by failing to deduct 30% Russian export duty on Russian gas and by adjusting to reflect local distribution cost.

In the third plea, the applicant challenges the determination of profit margin used in constructed normal value. The applicant submits that the profit margin determined by institutions and added to the cost of manufacturing to form constructed normal value of the applicant in the findings of the contested regulation, is in breach of Article 2(3) and 2(6)(c) of the Basic Regulation and manifestly unreasonable, and is vitiated by a manifest error of assessment. Also the profit margin thus determined departs significantly, in breach of Article 11(9) of the Basic Regulation, from the profit and methodology for constructed normal value used in the original investigation which led to the duty under review.

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¹ - Council Implementing Regulation (EU) No 1251/2009 of 18 December 2009 amending Regulation (EC) No 1911/2006 imposing a definitive anti-dumping duty on imports of solutions of urea and ammonium nitrate originating, inter alia, in Russia, OJ 2009 L 338, p. 5

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)