# C_2009282EN.01002302.xml

| 21.11.2009 | EN | Official Journal of the European Union | C 282/23 |
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21.11.2009

EN

Official Journal of the European Union

C 282/23

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Appeal brought on 20 August 2009 by Council of the European Union against the judgment of the Court of First Instance (Fourth Chamber) delivered on 17 June 2009 in Case T-498/04: Zhejiang Xinan Chemical Industrial Group Co. Ltd v Council of the European Union

(Case C-337/09 P)

2009/C 282/41

Language of the case: English

Parties

Parties

Appellant: Council of the European Union (represented by: J.-P. Hix, Agent, G. Berrisch, Rechtsanwalt and G. Wolf, Rechtsanwalt)

Appellant:

Other parties to the proceedings: Zhejiang Xinan Chemical Industrial Group Co. Ltd, Commission of the European Communities, Association des Utilisateurs et Distributeurs de l'AgroChimie Européenne (Audace)

Other parties to the proceedings:

Form of order sought

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment of the Court of First Instance of the European Communities of 17 June 2009; |
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set aside the judgment of the Court of First Instance of the European Communities of 17 June 2009;

| — | give final judgment on the dispute by dismissing the Application in its entirety; |
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give final judgment on the dispute by dismissing the Application in its entirety;

| — | in the alternative, refer the case back to the CFI; and |
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in the alternative, refer the case back to the CFI; and

| — | in any event, order that the costs of the appeal proceedings and of the proceedings before the Court of first Instance be borne by the Applicant at first instance. |
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in any event, order that the costs of the appeal proceedings and of the proceedings before the Court of first Instance be borne by the Applicant at first instance.

Pleas in law and main arguments

Pleas in law and main arguments

The appellant submits that the Court of first Instance:

| 1. | erred in law by treating the two conditions under Article 2(7)(c) of Council Regulation (EC) No 384/96 on protection against dumped imports from countries not members of the European Communities (1) (‘Basic Regulation’), namely the requirements that a claim for market economy status (‘MES’) contain sufficient evidence that decisions listed in that provision were ‘made in response to market signals reflecting supply and demand’ and that they were made ‘without significant State interference’, as s single condition, thereby rendering the second condition redundant; |
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1.

erred in law by treating the two conditions under Article 2(7)(c) of Council Regulation (EC) No 384/96 on protection against dumped imports from countries not members of the European Communities (1) (‘Basic Regulation’), namely the requirements that a claim for market economy status (‘MES’) contain sufficient evidence that decisions listed in that provision were ‘made in response to market signals reflecting supply and demand’ and that they were made ‘without significant State interference’, as s single condition, thereby rendering the second condition redundant;

1

| 2. | erred in law when interpreting the word ‘significant’ in ‘significant State interference’ under Article 2(7)(c) of the Basic Regulation as referring to the considerations or motives underlying the State's interference, i.e. whether it was based on purely commercial considerations or considerations peculiar to the State, whereas such an interpretation finds no support in the wording of that provision; |
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2.

erred in law when interpreting the word ‘significant’ in ‘significant State interference’ under Article 2(7)(c) of the Basic Regulation as referring to the considerations or motives underlying the State's interference, i.e. whether it was based on purely commercial considerations or considerations peculiar to the State, whereas such an interpretation finds no support in the wording of that provision;

| 3. | erred in law by effectively reversing the burden of proof in requiring the Council to establish, when refusing MES to a State-controlled company, that the company's decisions under Article 2(7)(c) were influenced by considerations peculiar to the State as opposed to commercial considerations; |
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3.

erred in law by effectively reversing the burden of proof in requiring the Council to establish, when refusing MES to a State-controlled company, that the company's decisions under Article 2(7)(c) were influenced by considerations peculiar to the State as opposed to commercial considerations;

| 4. | erred in law by finding that the Council had committed a manifest error in concluding that the State exercised significant control over the Applicant as regards the setting of export prices for the product concerned by (i) entrusting the China Chamber of Commerce Metals, Minerals & Chemicals Importers and Exporters (‘CCCMC’) to set a minimum floor price, verify, and veto exports that did not respect these prices; and (ii) enforcing the minimum floor price by preventing export transactions which had not been stamped by the CCCMC. In particular, the Court of First Instance erred in law by finding that the Council was required to put in issue the probative value or sufficiency of evidence advanced by the Applicant that the system put in place by the CCMC and supported by Chinese exports authorities did not actually restrict exporters’ ability to set export prices independently; |
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4.

erred in law by finding that the Council had committed a manifest error in concluding that the State exercised significant control over the Applicant as regards the setting of export prices for the product concerned by (i) entrusting the China Chamber of Commerce Metals, Minerals & Chemicals Importers and Exporters (‘CCCMC’) to set a minimum floor price, verify, and veto exports that did not respect these prices; and (ii) enforcing the minimum floor price by preventing export transactions which had not been stamped by the CCCMC. In particular, the Court of First Instance erred in law by finding that the Council was required to put in issue the probative value or sufficiency of evidence advanced by the Applicant that the system put in place by the CCMC and supported by Chinese exports authorities did not actually restrict exporters’ ability to set export prices independently;

| 5. | erred in law by finding that, on the basis of all other findings, the Council committed a manifest error in refusing the Applicant MES. |
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5.

erred in law by finding that, on the basis of all other findings, the Council committed a manifest error in refusing the Applicant MES.

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(1)  OJ L 56, p 1.

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