# C_2005193EN.01003801.xml

| 6.8.2005 | EN | Official Journal of the European Union | C 193/38 |
| --- | --- | --- | --- |

6.8.2005

EN

Official Journal of the European Union

C 193/38

---

Action brought on 10 June 2005 by Huvis Corporation against the Council of the European Union

(Case T-221/05)

(2005/C 193/64)

Language of the case: English

An action against the Council of the European Union was brought before the Court of First Instance of the European Communities on 10 June 2005 by Huvis Corporation, established in Seoul (Republic of Korea), represented by J.-F. Bellis, F. Di Gianni and R. Antonini, lawyers.

The applicant claims that the Court should:

| — | annul Article 2 of Council Regulation (EC) No 428/2005 of 10 March 2005 imposing a definitive anti-dumping duty on imports of polyester staple fibres originating in the People's Republic of China and Saudi Arabia, amending Regulation (EC) No 2852/2000 imposing a definitive anti-dumping duty on imports of polyester staple fibres originating in the Republic of Korea and terminating the anti-dumping proceeding in respect of such imports originating in Taiwan insofar as it imposes a definitive anti-dumping duty on imports from Korea of the product concerned manufactured by Huvis Corporation and, to the extent necessary, to declare inapplicable the provisions of the basic Regulation on the basis of which the flawed determinations contained in the Contested Regulation relied on; and |
| --- | --- |

—

annul Article 2 of Council Regulation (EC) No 428/2005 of 10 March 2005 imposing a definitive anti-dumping duty on imports of polyester staple fibres originating in the People's Republic of China and Saudi Arabia, amending Regulation (EC) No 2852/2000 imposing a definitive anti-dumping duty on imports of polyester staple fibres originating in the Republic of Korea and terminating the anti-dumping proceeding in respect of such imports originating in Taiwan insofar as it imposes a definitive anti-dumping duty on imports from Korea of the product concerned manufactured by Huvis Corporation and, to the extent necessary, to declare inapplicable the provisions of the basic Regulation on the basis of which the flawed determinations contained in the Contested Regulation relied on; and

| — | order the Council to bear the costs of these proceedings. |
| --- | --- |

—

order the Council to bear the costs of these proceedings.

Pleas in law and main arguments

The applicant is a Korean-based company specialising in the production of polyester filament yarn, polyester staple fibre and polyethylene terephthalate. By Council Regulation (EC) No 428/2005 (1), the Council imposed a definitive anti-dumping duty of 5,7 % on imports of polyester staple fibre manufactured by the applicant and originating in Korea.

1

The applicant submits that the methodology used by the Council to calculate the applicant's dumping margin and, in particular, to calculate the duty drawback adjustment claimed by the applicant, is contrary to Article 2.4 of the WTO Anti-Dumping Agreement, since it did not produce a fair comparison between the applicant's export price and the normal value and it imposed an unreasonable burden of proof on the applicant.

The methodology used to calculate the applicant's duty drawback adjustment also violated the principles of legal certainty, legitimate expectations, sound administration and proportionality, since by using this methodology the Council unlawfully increased the applicant's dumping margin. Moreover, the Council violated Article 11(9) of the basic Anti-Dumping Regulation as in the review proceeding at stake it applied a different methodology for the calculation of the duty drawback adjustment than that used in the original investigation. The methodology also violates the principle of non-discrimination as a more favourable methodology was applied by the Council in other similar cases.

The applicant further submits that the rejection of the credit costs claimed by the applicant in the framework of the review proceeding is contrary to Article 2.4 of the WTO Anti-Dumping Agreement, since it did not produce a fair comparison between the applicant's export price and the normal value and the evidence sought by the Council in support of the credit costs adjustment amounts to an unreasonable burden of proof on the applicant.

The rejection of the credit costs claimed by the applicant also violated the principle of sound administration since this determination was based on the finding that the applicant did not provide written evidence in support of its claim, whereas the payment terms granted by the applicant were agreed on the basis of customary business rules in force in the Republic of Korea.

---

(1)  Council Regulation (EC) No 428/2005 of 10 March 2005 imposing a definitive anti-dumping duty on imports of polyester staple fibres originating in the People's Republic of China and Saudi Arabia, amending Regulation (EC) No 2852/2000 imposing a definitive anti-dumping duty on imports of polyester staple fibres originating in the Republic of Korea and terminating the anti-dumping proceeding in respect of such imports originating in Taiwan (OJ L71, p. 1)

1

---