Action brought on 24 September 2010 - Forgital Italy v Council
(Case T-438/10)
Language of the case: Italian
Parties
Applicant: Forgital Italy SpA (Velo d'Astico, Italy) (represented by: V. Turinetti di Priero and R. Mastroianni, lawyers)
Defendant: Council of the European Union
Form of order sought
The applicant claims that the Court should:
annul Council Regulation (EU) No 566/2010 of 29 June 2010 amending Regulation (EC) No 1255/96 temporarily suspending the autonomous Common Customs Tariff duties on certain industrial, agricultural and fishery products, with particular reference to point (1) of Article 1 thereof, and Annex I to that Regulation in so far as it amends the description for CN Code ex 8108 20 00;
order the Council to pay the costs of the proceedings.
Pleas in law and main arguments
The applicant in the present case is a company, with its seat in Italy, which is specialised in metalworking. It contests Regulation No 566/2010, which amended the applicable legislation temporarily suspending the autonomous Common Customs Tariff duties, in so far as one of the amendments introduced applies to the product designated by CN Code ex 8108 20 00, TARIC 20, the description of which was replaced with the following: 'Raw ingots from the fusion of titanium and titanium alloys, of a diameter of not more than 380 mm'.
As a result of that amendment, ingots of a diameter greater than 380 mm - which had until then been exempt from duty under the previous legislation - were made liable, with effect from 1 July 2010, for payment of the Common Customs Tariff. On the other hand, ingots of a diameter of 380 mm or less will continue to be exempt from the duty until 31 December 2013.
In support of the action, the applicant relies on four pleas in law:
1. Failure to state reasons for the decision, or failure to state adequate reasons. On this point, it is argued that inadequate reasons are given in the contested Regulation for the amendment to the description of the product designated by CN Code 8108 20 00, TARIC 20: it is merely stated that the amendment is necessary 'in order to take account of technical product developments and economic trends on the market'. Despite the requirements under the case-law, that statement does not enable the applicant to know the reasons for the measure so as to be able to defend its own rights; nor does it enable the EU Courts to exercise their powers of review.
2. Breach of the principles of legal certainty and the protection of the applicant's legitimate expectations. According to the applicant, in so far as the contested Regulation concerns the description of the product in question, it fails to comply with the principle of legal certainty, in that the amendments made were not predictable on the basis of previous practice or the information given in the Commission Communication concerning autonomous tariff suspensions and quotas (OJ 1998 C 128, p. 2). That entails also breach of the principle of the protection of the legitimate expectations entertained by the applicant, which had in good faith placed its trust in (i) the previous description and period of validity of the tariff suspension relating to the products in question, as provided under the legislation in force before the amendment and (ii) the criteria identifiable in previous practice and set out in the above Communication as the basis for any amendment of the description or for the premature cancellation of that tariff suspension.
3. Breach of the principle of equal treatment. According to the applicant, the contested Regulation introduces, without putting forward any plausible justification, a difference in treatment as between the importers of raw ingots from the fusion of titanium and titanium alloys, of a diameter of not more than 380 mm (for whom the tariff is suspended) and importers of titanium ingots of a greater diameter.
4. Breach of the principle of proportionality. The applicant maintains on this point that, so far as the product in question is concerned, the contested Regulation is disproportionate in relation to the purported need to 'take account of technical product developments and economic trends on the market', in that (i) there have been no economic or technical developments in the titanium alloy ingots sector which were so significant as to make it necessary for the import rules to undergo the amendment introduced by the contested Regulation and (ii) the drastic and unexpected nature of those amendments - which were not accompanied by a transitional period - is inconsistent with the aims pursued by that Regulation.
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