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Action brought on 6 October 2008 - EuroChem MCC v Council

(Case T-459/08)

Language of the case: English

Parties

Applicants: EuroChem Mineral and Chemical Company OAO (EuroChem MCC) (Moscow, Russia), (represented by: P. Vander Schueren and B. Evtimov, lawyers)

Defendant: Council of the European Union

Form of order sought

Annul Council Regulation (EC) No 661/2008 of 8 July 2008 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia following an expiry review pursuant to Article 11(2) and a partial interim review pursuant to Article 11(3) of Regulation (EC) No 384/96¹ insofar as it imposes an anti-dumping duty on the applicants, its manufacturing subsidiaries and related companies, indicated in recital 23(a) and (c) and Articles 1.2(a) and 2.2(a) of the contested regulation;

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

Pleas in law and main arguments

In support of their application the applicants put forward two grounds for annulment. The second ground is divided into three pleas.

First, the applicants submit that the Council and the Commission breached Article 11(3) of the basic regulation² and/or made a breach of an essential procedural requirement by refusing to initiate upon their own initiative an interim review of injury and the injury margin findings in parallel with the expiry review, and consequently made a manifest error of assessment in the finding of a likelihood of recurrence of injury in the context of the expiry review.

Secondly, the applicants claim that the Council and the Commission wrongly established the normal value for the applicants in the partial interim review, leading to its artificial increase, and made a wrong comparison with export price, and hence made an erroneous finding of dumping, thereby breaching Articles 1 and 2 of the basic regulation, committing series of manifest errors of assessment and violating fundamental principles of Community law.

More particularly, the applicants argue that the Council and the Commission erred in law and violated Article 2(3) and (5) of the basic regulation as well as their legal context provided by Articles 1 ad 2 of the basic regulation, by disregarding a major part of the applicants' costs of production as being unreliable and/or de facto applying a non-market economy methodology for establishing the major part of the applicants' normal value.

Once having decided to proceed with the gas adjustment, the Commission violated Article 2(5), second sentence, and/or made a manifest error of appreciation and showed a lack of reasoning by implementing the gas adjustment on the basis of the intra-Community price of gas at Waidhaus, Germany and failing to make further deductions.

Finally, the applicants submit that the Council and the Commission violated Article 2(10) of the basic regulation and made a manifest error of assessment of the facts by deducting from the applicants' export price the first independent customer selling, general and administrative expenses and commissions in respect of related companies, which are integral parts of the applicants' single economic entity and integrated sales department.

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¹ - OJ L 185, p. 1

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)