Action brought on 18 February 2014 – PT Pelita Agung Agrindustri v Council

(Case T-121/14)

Language of the case: English

Parties

Applicant: PT Pelita Agung Agrindustri (Medan, Indonesia) (represented by: F. Graafsma and J. Cornelis, lawyers)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

Annul Council Implementing Regulation (EU) No 1194/2013 of 19 November 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of biodiesel originating in Argentina and Indonesia (OJ 2013 L 315, p. 2), insofar as it imposes and anti-dumping duty on the applicant; and

Order the defendant to pay the applicant’s costs.

Pleas in law and main arguments

In support of the action, the applicant relies on seven pleas in law.

First plea in law, alleging that the WTO Anti-Dumping Agreement does not allow to adjust costs for the simple reason that these are lower than in other markets or are “distorted” due to government intervention. Article 2(5) of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51; hereafter referred to as “the basic Regulation”) should therefore be ruled inapplicable insofar as it provides for such a possibility to adjust costs.

Second plea in law, alleging that the adjustment to the costs of Crude Palm Oil (CPO) in the present case constitutes a violation of Article 2 (5) of the basic Regulation. More specifically, the applicant submits the following claims:

The necessary evidence on the basis of which it was concluded that the CPO prices on the Indonesian market are distorted is missing and the Council and the European Commission (hereafter “the Institutions”) committed a manifest error of assessment in finding that CPO prices on the Indonesian market are distorted;

By using the reference export price (“HPE”) to adjust the costs, the Institutions did not adjust the costs on "a reasonable basis" as mandated by Article 2 (5) of the basic Regulation and/or on the basis of “sources which are unaffected by such distortions”; and

Article 2(5) of the basic Regulation does not allow to adjust costs in situations in which prices are simply and allegedly "low".

Third plea in law, alleging that the Institutions committed a manifest error of assessment in finding that the applicant's CPO purchase prices from related parties are distorted. More specifically, the Institutions committed a manifest error of assessment in finding that the applicant's CPO purchase prices from related companies were not at arm's length.

Fourth plea in law, alleging that in determining the reasonable profit margin, the Council did not comply with the legal obligation contained in Article 2(6)(c) of the basic Regulation. This Article requires that the amount of reasonable profit cannot exceed the profit normally realized by other exporters or producers on sales of products of the same general category in the domestic market of the country of origin.

Fifth plea in law, alleging that the Institutions, by refusing to make an appropriate adjustment on account of a price premium associated with the certification of compliance with RED, have manifestly misstated the facts and violated Articles 3 (2) and 3 (3) of the basic Regulation because the applicant's export prices were not objectively compared with the Union industry's target price. In addition, by refusing to make the necessary adjustment for the RED certification, the Institutions impermissibly discriminated against the applicant as compared to other Indonesian producers.

Sixth plea in law, alleging that the Institutions breached Article 3(7) of the basic Regulation and committed a manifest error of assessment in finding that Double Counting Regulations did not contribute to the injury suffered by the Union industry.

Seventh plea in law, alleging that the Institutions have failed to consider information and arguments submitted by the applicant in the course of the investigation. By doing so, they have not only breached their obligation of due diligence and proper administration by not carefully and impartially examining all relevant evidence before them but also failed to comply with the obligation contained in Article 20 (5) of the basic Regulation as well as with the obligation to provide reasons as mandated by Article 296 TFEU.