ddrg/super_eurlex huggingface dataset:
Judgment of the General Court (Ninth Chamber) of 15 September 2016 —

PT Wilmar Bioenergi Indonesia and PT Wilmar Nabati Indonesia v Council

(Case T‑139/14)

‛Dumping — Imports of biodiesel originating in Indonesia — Definitive anti-dumping duties — Article 2(3) and (5) of Regulation (EC) No 1225/2009 — Normal value — Production costs’

1. Judicial proceedings — Introduction of new pleas during the proceedings — Amplification of a plea made earlier — Admissibility (Rules of Procedure of the General Court (1991), Arts 44(1)(c), and 48(2)) (see paras 35, 36)

2. Acts of the institutions — Statement of reasons — Obligation — Scope — Regulation imposing anti-dumping duties (Art. 296 TFEU) (see paras 38-40)

3. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Derogations from the method of fixing the normal value by reference to the actual price laid down by the basic anti-dumping regulation — Exhaustive nature (Council Regulation No 1225/2009, Art. 2(3), first para.) (see para. 41)

4. EU law — Principles — Rights of defence — Observance thereof in the context of administrative proceedings — Anti-dumping — Duty of the institutions to keep the undertakings concerned informed — Scope (Council Regulation No 1225/2009, Art. 20(2)) (see para. 53)

5. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Recourse to the constructed value — Calculation of production costs on the basis of accounting registers — Derogation — Costs linked to the production and sale of the product subject to the investigation not reasonably reflected in those registers — Burden of proof borne by the institutions — Judicial review — Scope (Council Regulations No 1972/2002, fourth recital, and No 1225/2009, Arts 2(3), second para., and 5, first to third paras) (see paras 72-76, 80-105)

6. Actions for annulment — Subject-matter — Partial annulment — Condition — Severability of the contested provisions — Provision of a regulation imposing definitive anti-dumping duties — Annulment entailing a modification of the substance of the regulation (Art. 263 TFEU; Council Regulation No 1194/2013, Art. 1) (see paras 107-109)

Re:

ACTION pursuant to Article 263 TFEU for annulment of 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) in so far as the applicants are concerned.

Operative part

The Court:

1. Annuls Articles 1 and 2 of 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, in so far as they concern PT Wilmar Bioenergi Indonesia and PT Wilmar Nabati Indonesia;

2. Orders the Council of the European Union to bear its own costs and to pay the costs incurred by PT Wilmar Bioenergi Indonesia and PT Wilmar Nabati Indonesia;
Common foreign and security policy—Restrictive measures against Iran—Freezing of funds of persons, entities or bodies engaged in or supporting nuclear proliferation—Alternative criteria fixed by EU measures for the inclusion of an entity in the lists of persons and entities concerned by the restrictive measures—Scope

(Council Decision 2010/413/CFSP, Art. 20(1)(b) and (c); Council Regulation No 267/2012, Art. 23(2)(a), (b) and (d))

(see paras 23, 28, 29, 34)
Judgment of the General Court (First Chamber) of 5 April 2017 —

HB and Others v Commission

(Case T‑361/14)

(Law governing the institutions — European citizens’ initiative — Protection of stray animals — Psychological effects on adults and children — Refusal of registration — Manifest lack of powers of the Commission — Article 4(2)(b) and (3) of Regulation (EU) No 211/2011)

1. Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Pleas in law not set out in the application — General reference to documents annexed to the application (Statute of the Court of Justice, Arts 21, first para., and 53, first para.; Rules of Procedure of the General Court, Art. 44(1)(c)) (see para. 15)

2. Citizenship of the Union — Rights of the citizen — Presentation of a citizens’ initiative — Regulation No 211/2011 — Conditions for registration — Information having to accompany a proposal — Information on the subject-matter, aims and context (European Parliament and Council Regulation No 211/2011, Art. 4 and Annex II) (see para. 30)

3. EU law — Principles — Account to be taken of animal welfare — Obligation to take account of the requirements of animal welfare in the formulation and implementation of EU policy — Scope (Art. 13 TFEU) (see paras 36-39, 43)

Re:

ACTION pursuant to Article 263 TFEU for annulment of Commission Decision C(2014) 2119 final of 26 March 2014 rejecting the request for registration of the proposed citizens’ initiative entitled ‘Ethics for Animals and Kids.

Operative part

The Court:

1. Dismisses the action;
The lodging of a version of an application modified as to its substance is not provided for by the Rules of Procedure, so such a document cannot be added to the file. In that regard, Article 21 of the Statute of the Court of Justice and Article 44(1)(c) and (d) of the Rules of Procedure of 2 May 1991 cannot be interpreted as authorising the applicant to bring new heads of claim before the General Court in order to transform an action which is manifestly inadmissible into an admissible action by modifying the subject matter of the dispute, as set out in the originating application, whether that is before or after the expiry of the period within which to bring proceedings.

It is true that Article 48(2) of the Rules of Procedure, which allows new pleas in law to be introduced in the course of proceedings if those pleas are based on facts and law which come to light in the course of the procedure, may be applied in certain cases to changes to the forms of order sought. Such is the case, in particular where the contested decision is replaced in the course of proceedings by a decision with the same subject matter, which must then be regarded as a new factor allowing the applicant to adapt its pleas in law and claims for relief.

However, in the absence of matters of law or of fact which came to light in the course of the written procedure, only the order sought in the originating application may be taken into consideration, so as not to modify the subject matter of the dispute, as it has been exhaustively set out in that application, so that the merits of the action must be examined solely with regard to the forms of order contained in the originating application.

(see paras 23, 25-27)
Judgment of the General Court (Eighth Chamber) of 14 December 2017 — AETMD v Council

(Case T‑460/14)

(Dumping — Prepared or preserved sweetcorn in kernels originating in Thailand — Partial interim review — Amendment of the definitive anti-dumping duty — Association representing EU producers — Infringement of procedural rights — Rights of the defence)

1. Common commercial policy—Protection against dumping—Anti-dumping proceeding—Rights of defence—Obligation of the institutions to provide information—Scope—Lack of particular information—Obligation for the interested parties to enable the institutions to assess the problems resulting from that lack of information—Infringement—Consequences (Council Regulation No 1225/2009, Arts 19(2) and 20(2)) (see paras 53-55, 66, 67)

2. Common commercial policy—Protection against dumping—Anti-dumping proceeding—Rights of defence—Communication of the final disclosure documents by the Commission to the undertakings—Incomplete nature of the final disclosure—Consequences (Council Regulation No 1225/2009, Art. 20(2) and (4)) (see paras 79-81)

3. Actions for annulment—Judgment annulling a measure—Effects—Obligation to implement—Scope (Art. 266 TFEU) (see para. 86)

Re:

APPLICATION on the basis of Article 263 TFEU seeking the annulment of Council Implementing Regulation (EU) No 307/2014 of 24 March 2014 amending Implementing Regulation (EU) No 875/2013 imposing a definitive anti-dumping duty on imports of certain prepared or preserved sweetcorn in kernels originating in Thailand following an interim review pursuant of Article 11(3) of Regulation (EC) No 1225/2009 (OJ 2014 L 91, p. 1).

Operative part

The Court:

1. Annuls Council Implementing Regulation (EU) No 307/2014 of 24 March 2014 amending Implementing Regulation (EU) No 875/2013 imposing a definitive anti-dumping duty on imports of certain prepared or preserved sweetcorn in kernels originating in Thailand following an interim review pursuant of Article 11(3) of Regulation (EC) No 1225/2009;

2. Dismisses the remainder of the action;

3. Orders the Council of the European Union to bear its own costs and to pay the costs incurred by the Association européenne des transformateurs de maïs doux (AETMD);
Acts of the institutions — Statement of reasons — Obligation — Scope — Decision, in the procedure for the award of a public service contract, not to accept a tender — Obligation to communicate, following a written request, the characteristics and relative advantages of the tender accepted and the name of the tenderer — No obligation on the awarding authority to provide a detailed comparative analysis of the tender accepted and the tender of the unsuccessful tenderer

(Art. 296 TFEU; European Parliament and Council Regulation No 966/2012, Art. 113(2); Commission Regulation No 1268/2012, Art. 161(2) and (3))

(see paras 203, 238, 333, 334, 343)
Competition — Fines — Amount — Determination — Determination of the basic amount — Determination of the value of sales — Sales carried out in direct or indirect relation to the infringement — Value of sales to set the base amount of a subsidiary’s fine — Account taken of sales made by the parent companies — Parent companies’ sales made on a market affected by the cartel — Parent companies and subsidiary within the same economic unit — Lawfulness

(Council Regulation No 1/2003, Art. 23(2) and (3); Commission notice 2006/C 210/02, points 13 and 18)

(see paras 98-113)
The condition that there must be direct concern to a natural or legal person, as laid down in the fourth paragraph of Article 263 TFEU, requires the contested EU measure to affect directly the legal situation of the individual and leave no discretion to its addressees, who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from EU rules without the application of other intermediate rules.

A credit institution listed in the annexes to Decision 2014/512/CFSP and to Regulation No 833/2014, concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine, is directly concerned by the restrictive measures prohibiting all EU operators from carrying out certain types of financial transaction with credit institutions established in Russia which satisfy the conditions laid down in Article 1(1)(a) of that decision and Article 5(1)(a) of that regulation, and the names of which are listed in those annexes. Those measures apply directly to it, as an immediate consequence of the fact that it is an entity covered by those provisions, read in the light of the corresponding annexes, without leaving any discretion to their addressees, who are entrusted with the task of implementing them.

Although those provisions lay down prohibitions which apply in the first place to credit institutions and other financial bodies established in the European Union, the aim and the effect of those prohibitions is directly to affect the entities whose name is listed in the annexes to those acts, whose economic activity is limited as a result of the application of those measures in respect of them. Self-evidently it is for the bodies established in the European Union to apply those measures, given that the acts adopted by the EU institutions are not, as a rule, intended to apply outside the territory of the European Union. That does not, however, mean that the entities affected by the provisions on access to the capital market are not directly concerned by the restrictive measures applied with regard to them.

(see paras 57-60, 62)
36

In the decision rejecting the complaint, the Council, essentially reiterating those same considerations, expressly replied to Mr Simpson’s complaint alleging a breach of the principle of equal treatment. In that context, the Council first noted that, according to the case-law, there was a breach of the principle of non-discrimination where two classes of persons, whose factual and legal situations were not essentially different, were treated differently and where such treatment was not objectively justified. The Council then examined the situation of the three officials in respect of whom Mr Simpson claimed to have suffered discrimination, finding, first, that the situations in question were not comparable, in so far as the open competitions and services concerned were different and the upgrade had been granted to those officials well before Mr Simpson’s request, and, secondly, that there had therefore been no breach of the principle of equal treatment. Furthermore, the Council also indicated that the interest of the service could vary over the course of time and that it could, for example, influence the level of recruitment. The Council then pointed out that, in accordance with the case-law, the appointing authority was not obliged to follow up on a recruitment procedure begun under Article 29 of the Staff Regulations. It follows, according to the Council, that a successful candidate in a competition does not have a right to be recruited and that, by analogy, an official in the same situation does not have the right to be upgraded while remaining in the same post. Finally, the Council stated that, in the present case, in the absence of a statutory provision, the appointing authority was guided by the interest of the service, considering that the situation of the language unit in which Mr Simpson worked did not require recruitment at grade AD 9.
59

It should also be noted that, as observed by the Council, the Commission informed the first applicant that his name had been included on the list of persons referred to in Article 6 of Regulation No 314/2004 by letter of 27 January 2009 and invited him, by letter of 18 December 2009, to submit his observations and any request to remove his name from the list to the Council. The first applicant also wrote, by letters of 26 October and 26 November 2009 and 10 February 2010, to all the members of the Council, setting out his observations on the inclusion of his name and the names of his companies on the lists in question. By letter of 16 February 2010, the Council disputed the first applicant’s arguments, referring, inter alia, to the evidence contained in the second report drawn up under the aegis of the UN on 15 October 2003 (‘the report of 15 October 2003’) by the Panel of Experts. The Council informed the first applicant that those names would be maintained on the lists in question under Decision 2010/92. The first applicant replied to that letter by letter of 19 April 2010, to which the Council replied by letter of 7 June 2010. Lastly, by letter of 13 May 2011, the first applicant submitted his observations to the High Representative of the Union for Foreign Affairs and Security Policy and received a reply from the European External Action Service dated 29 June 2011. Moreover, in reply to two letters from the first applicant of 11 October and 3 November 2011, the Council pointed out, by letter of 9 November 2011, that he could at any time submit a request, with supporting documentation, for the restrictive measures to be reconsidered.
42

The Council, supported by the Commission and the EBB, contends, in essence, that the institutions discharged their burden of proof as regards the existence of a distortion of CPO prices and correctly applied Article 2(5) of the basic regulation. In the contested regulation, the institutions explained the DET system and demonstrated that that system had created a distortion which made the domestic prices of CPO artificially lower than the HPE price for CPO published by the Indonesian authorities and in turn based on published international prices. Moreover, the effect of the Indonesian rules in terms of the benefits for the downstream industries has been acknowledged and calculated in a number of studies. The factual differences established in the case giving rise to the judgment of 7 February 2013, Acron and Dorogobuzh v Council (T‑235/08, not published, EU:T:2013:65), are not decisive, since in that judgment the Court confirmed the general principle that, where the costs connected with the manufacture of the product under investigation are not reasonably reflected in the records of the companies at issue, they cannot serve as a basis for calculating normal value, which applies to the facts in the present case. As regards the various forms of State intervention claimed to be possible, that argument is also irrelevant since there was, in the present case, direct intervention by the Indonesian State in setting the export duty rates and influencing the auctions. The institutions did not therefore adjust the costs solely because they were low, but because they were distorted, which heavily influenced the domestic prices of CPO and, therefore, the records of the companies producing it.
146

As regards the first argument concerning the disproportionate nature of the requirement concerning the awareness of the person liable of the composition of the crew on the vessels which fished the products in question, it should be noted that although the Commission imposes such a requirement on the liable person in the contested decision, it also extends that requirement to the exporter in its pleadings before the Court. In any event, in the light of the fact that the liable person and the exporter belong to the same group, the exporter’s lack of care as regards supervision of the condition relating to the composition of the crew on the vessels is also attributable to the person liable, particularly on account of the possibilities for making inquiries which exist between undertakings of the same group. Furthermore, by producing declarations of ownership of the vessels, which indicate the composition of the crew and which the Calvo group customarily require shipowners to complete, the Kingdom of Spain actually provides clear evidence that the requirement for the exporter or person liable to be aware of the composition of the crew is not manifestly disproportionate and could, on the contrary, reflect a relatively standard practice in the fisheries sector, particularly where the catches made by those vessels are intended to be imported into the European Union under the GSP. In those circumstances, it is not inconceivable that the exporter or liable person, wishing to benefit from the GSP, might ask suppliers, even from outside the Calvo group, for data on crew composition in the course of their contractual relations, notwithstanding the Kingdom of Spain’s claims that such information was difficult to obtain on account of, in particular, the possibility of there being changes to the crew at the time of each catch or the presence on board of some individuals on a non-permanent basis. Moreover, contrary to the assertions of the Kingdom of Spain, compliance with the legislation on the protection of personal data does not preclude such an approach, since in practice there are various ways of requesting and protecting such data without infringing the abovementioned legislation, by seeking the necessary permissions, for that purpose, from the persons concerned, especially for vessels outside the group of the exporter or person liable. In addition, acceptance of the Kingdom of Spain’s contention in that regard would render inoperative the requirement to establish the composition of the crew at the time of the catch, even though it is not disputed that such an obligation applied in the instant case, in accordance with the rules in force on the relevant date.
10

Second, by the same letter of 27 June 2014, EFSA refused the confirmatory request for access to the abovementioned documents based on the exception laid down in Article 4(1)(b) of Regulation No 1049/2001. EFSA states that, where a request based on that regulation seeks access to documents containing personal data, the provisions of Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2001 L 8, p. 1) become applicable in full. Article 8(b) of Regulation No 45/2001 requires the recipient of personal data to establish the necessity of having them transferred, by way of legitimate justifications or convincing arguments. EFSA argues that the applicant has not satisfied that requirement. Furthermore, its decision not to extend the secondment is based solely on the fact that the operational requirements of the unit to which the applicant was assigned had changed, so that her profile no longer met the necessary requirements at the time. Further, there was no connection between that decision and the emails to which the applicant wishes to have access. Finally, EFSA indicates to the applicant that she may bring an action for annulment against the two decisions contained in the letter of 27 June 2014 before the General Court pursuant to Article 263 TFEU or that she may lodge a complaint with the European Ombudsman.
2.

Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Assessment of the likelihood of confusion — Determination of the relevant public — Attention level of the public (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 16, 22)