# C_2009193EN.01000701.xml

| 15.8.2009 | EN | Official Journal of the European Union | C 193/7 |
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15.8.2009

EN

Official Journal of the European Union

C 193/7

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Appeal brought on 29 May 2009 by Council of the European Union against the judgment of the Court of First Instance (Second Chamber) delivered on 10 March 2009 in Case T-249/06: Interpipe Nikopolsky Seamless Tubes Plant Niko Tube ZAT (Interpipe Niko Tube ZAT), formerly Nikopolsky Seamless Tubes Plant ‘Niko Tube’ ZAT, Interpipe Nizhnedneprovsky Tube Rolling Plant VAT (Interpipe NTRP VAT), formerly Nizhnedneprovsky Tube-Rolling Plant VAT v Council of the European Union

(Case C-191/09 P)

2009/C 193/07

Language of the case: English

Parties

Parties

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

Appellant:

Other parties to the proceedings: Interpipe Nikopolsky Seamless Tubes Plant Niko Tube ZAT (Interpipe Niko Tube ZAT), anciennement Nikopolsky Seamless Tubes Plant ‘Niko Tube’ ZAT, Interpipe Nizhnedneprovsky Tube Rolling Plant VAT (Interpipe NTRP VAT), anciennement Nizhnedneprovsky Tube-Rolling Plant VAT, Commission of the European Communities

Other parties to the proceedings:

Form of order sought

Form of order sought

The appellant claim that the Court should:

| — | set aside the judgment of the Court of First Instance of the European Communities of 10 March 2009 in so far as the CFI (1) annulled Article 1 of the Contested Regulation in so far as the anti-dumping duty fixed for exports towards the European Community of the products manufactured by the Applicants exceeds that which would have been applicable had the export price not been adjusted for a commission when sales took place through the intermediary of the affiliated trader, Sepco SA (point 1 of the operative part of the Contested Judgment) and (2) ordered the Council to bear its own costs and one quarter of the costs incurred by the Applicants (point 3 of the operative part of the judgment under appeal), |
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set aside the judgment of the Court of First Instance of the European Communities of 10 March 2009 in so far as the CFI (1) annulled Article 1 of the Contested Regulation in so far as the anti-dumping duty fixed for exports towards the European Community of the products manufactured by the Applicants exceeds that which would have been applicable had the export price not been adjusted for a commission when sales took place through the intermediary of the affiliated trader, Sepco SA (point 1 of the operative part of the Contested Judgment) and (2) ordered the Council to bear its own costs and one quarter of the costs incurred by the Applicants (point 3 of the operative part of the judgment under appeal),

| — | 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;

| — | order that the costs of the appeal proceedings and of the proceedings before the Court of First Instance be borne by the Applicants at first instance. |
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order that the costs of the appeal proceedings and of the proceedings before the Court of First Instance be borne by the Applicants at first instance.

Pleas in law and main arguments

Pleas in law and main arguments

The Council submits that the Court of First Instance:

| — | erred in law when it applied the case-law on the single economic entity concept, by analogy, to the application of Article 2(10)(i) of the Basic Anti-dumping Regulation (1) because it failed to recognize that the calculation of the normal value, the calculation of the export price, and the question whether adjustments apply, are governed by distinct rules. In this regard, the CFI also breached the obligation to state reasons; |
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erred in law when it applied the case-law on the single economic entity concept, by analogy, to the application of Article 2(10)(i) of the Basic Anti-dumping Regulation (1) because it failed to recognize that the calculation of the normal value, the calculation of the export price, and the question whether adjustments apply, are governed by distinct rules. In this regard, the CFI also breached the obligation to state reasons;

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| — | erred in law when interpreting the burden of proof that the institutions must meet when making an adjustment pursuant to Article 2(10)(i) of the Basic Regulation by not applying the normal burden of proof in anti-dumping cases, and consequently, erred in law by not applying the correct standard of judicial review with respect to an economic assessment by the institutions; |
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erred in law when interpreting the burden of proof that the institutions must meet when making an adjustment pursuant to Article 2(10)(i) of the Basic Regulation by not applying the normal burden of proof in anti-dumping cases, and consequently, erred in law by not applying the correct standard of judicial review with respect to an economic assessment by the institutions;

| — | erred in law by applying the wrong legal test when assessing the institutions' decision to make the Article 2(10)(i) adjustment because it assessed the decision based on the assumption that the single economic concept applies to the comparison of the normal value and the export price; |
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erred in law by applying the wrong legal test when assessing the institutions' decision to make the Article 2(10)(i) adjustment because it assessed the decision based on the assumption that the single economic concept applies to the comparison of the normal value and the export price;

| — | erred in law when it found that the institutions committed a manifest error of assessment in applying the first subparagraph of Article 2(10) of the Basic Regulation; |
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erred in law when it found that the institutions committed a manifest error of assessment in applying the first subparagraph of Article 2(10) of the Basic Regulation;

| — | erred in law in applying too strict an interpretation of the disclosure requirements; |
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erred in law in applying too strict an interpretation of the disclosure requirements;

| — | erred in law because it failed to apply correctly the legal test for a violation of the rights of defence which it had (correctly) identified; |
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erred in law because it failed to apply correctly the legal test for a violation of the rights of defence which it had (correctly) identified;

| — | erred in law in assessing the effect of the alleged procedural irregularity also because it relied on the legally erroneous findings as to the legality of the Article 2(10)(i) adjustment. |
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erred in law in assessing the effect of the alleged procedural irregularity also because it relied on the legally erroneous findings as to the legality of the Article 2(10)(i) adjustment.

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(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 L 56, p. 1–20

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