Error! Reference source not found.

Action brought on 21 December 2009 - Rusal Armenal v Council

(Case T-512/09)

Language of the case: English

Parties

Applicant: Rusal Armenal ZAO (represented by: B. Evtimov, lawyer)

Defendant: Council of the European Union

Form of order sought

annul Council Regulation (EC) No 925/2009 of 24 September 2009 imposing an definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain aluminium foil originating in Armenia, Brazil and the People's Republic of China, insofar as it affects the applicant;

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

Pleas in law and main arguments

By means of its application, the applicant seeks the annulment of Council Regulation (EC) No 925/2009 of 24 September 2009 imposing an definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain aluminium foil originating in Armenia, Brazil and the People's Republic of China ("the contested regulation"), insofar as it affects the applicant (OJ 2009 L 262, p. 1).

In support of its application, the applicant puts forward the following five legal grounds for annulment, one of which is based on an incidental plea of illegality.

On the basis of its first ground for annulment, the applicant claims that the Commission and the Council breached Article 2, paragraphs 1 to 6, of the Basic Regulation¹ and Article 2.1 and 2.2 of the Agreement on Implementation of Article VI GATT 1994 (hereinafter "Anti-dumping agreement" or "ADA"), by establishing normal value for the applicant, based on data from a third analogue country, thereby reaching fundamentally flawed findings of dumping and of cumulation, injury and causality regarding imports from Armenia. According to the applicant, the Council and the Commission should have established normal value for the applicant based on its own Armenian data, and not pursuant to Article 2(7)(a) of the Basic Regulation.

Further, the applicant claims that, for the purpose of reviewing the merits of the first ground for annulment, the Court should declare, in an incidental manner pursuant to Article 277 TFEU (ex Article 241 EC), the inapplicability of Article 2(7) of the Basic Regulation towards the applicant, to the extent that it served as a legal basis for the analogue country methodology, used to establish the applicant's normal value in the contested regulation. The applicant invokes this incidental plea of illegality, since it claims to be entitled to benefit from a judicial review of the application of Article 2(7) to itself and since it claims to have been affected by findings on normal value in the contested regulation which are legally based on Article 2(7) of the Basic Regulation. The latter should be declared inapplicable, according to the applicant, on the ground that its application with respect to the applicant infringes provisions 2.1 and 2.2 of the Anti-dumping agreement, which the EU intended to implement as multilateral obligations into EU law and which are part of the Treaties on which the EU is based and are binding on the Council and the Commission pursuant to well-settled case law of the Court of Justice.

On the basis of its second ground for annulment, the applicant submits that, even if it is assumed that the institutions did not act in breach of Article 2, paragraphs 1 to 6 of the Basic Regulation and the Anti-dumping agreement, they committed a breach of Article 2(7)(c) of the Basic Regulation and wrongly denied market economy treatment ("MET") to the applicant and made a series of manifest errors of assessments of the facts in the context of application of Article 2(7)(c).

On the basis of its third ground for annulment, the applicant contends that the institutions breached Article 3(4) of the Basic Regulation and made a manifest error of assessment, by failing to decumulate Armenia from allegedly dumped imports and, in that context, failing to consider the fundamental overhaul of Armenia's production activity during the period 2004-2006 and quality problems of Armenian product concerned during the re-launch and readjustement of manufacturing operations in 2007 during the investigation period.

On the basis of its fourth ground for annulment, the applicant claims that the Commission, by its process of consideration and its statement of reasons for rejecting the price undertaking offer from the applicant and at the same time accepting an undertaking offer from a Brazilian exporting producer in similar circumstances, has committed a breach of the fundamental legal principle of equal treatment/non-discrimination and made manifest errors of assessment.

On the basis of its fifth ground for annulment, it is submitted that the Commission has breached the fundamental principle of EU law of good governance, thereby breaching an essential procedural requirement, by making a public and direct reference to the applicant, to the on-going anti-dumping investigation at issue and allegedly creating a bias with the institutions responsible for the anti-dumping investigation, in the direction of imposing anti-dumping duties on exports of the applicant.

____________

¹ - 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)