Case T-104/02: Action brought on 8 April 2002 by SFT Gondrand Frères against the Commission of the European Communities
Date: 2002-06-29
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), anti-dumping duty, anti-dumping legislation, chemical fertiliser, chemical salt

29.6.2002

EN

Official Journal of the European Communities

C 156/33

Therefore, the applicant puts forward the same pleas and
arguments as in Case T-100/02, which are again the same as
those put forward in Case T-99/02.

(1) Under the operation examined by the Commission in this case,
Deutsche Shell would acquire sole control of the undertaking
DEA Mineraloel. The decision in case no. COMP/M. 2389-Shell/
DEA is also contested by this applicant in Case T-100/02.

The contested Decision contains, according to the applicant,
several errors of assessment and errors in law. Firstly, the
Commission erred in concluding that the merchant supply of
cumene to one of
the applicant’s production sites does
not constitute a separate economic market. Secondly, the
Commission failed to consider whether a dominant position
would be created in this market and failed to conclude that
a dominant position had been created. Alternatively, the
Commission failed to define a wider relevant market for the
sale of cumene and failed to analyse the creation of a dominant
position in such a market.

Action brought on 5 April 2002 by Ineos Phenol GmbH
& Co KG against the Commission of the European
Communities

(Case T-103/02)

(2002/C 156/62)

(Language of the case: English)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 5 April 2002 by Ineos Phenol
GmbH & Co KG, represented by Mr Julian Ellison, Mr Mark
Clough QC and Mr Matthew Hall of Ashurst Morris Crisp,
Brussels (Belgium).

The applicant claims that the Court should:

— annul under Article 230 of the EC Treaty the Commission
Decision in case no. COMP/M.2533-BP/E.ON insofar as
it relates implicitly to the merchant supply of cumene;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant also puts forward a plea concerning the
infringement of an essential procedural requirement,
the
misuse of powers and the violation of the principle of sound
administration. According to the applicant, the Commission
should have requested information from third parties in
relation to the sale of cumene by BP and Veba Oel.

Finally, the applicant claims that there was a lack of reasoning
in the contested Decision since the Commission failed to
analyse the supply of merchant cumene by BP and Veba Oel
and failed to address the issues raised in the present application.

Action brought on 8 April 2002 by SFT Gondrand Frères
against the Commission of the European Communities

(Case T-104/02)

(2002/C 156/63)

The applicant is a significant purchaser of a petrochemical
product called cumene from BP and Veba Oel AG.

(Language of the case: French)

The applicant contests the Decision of
the Commission
declaring an operation where BP, together with E.ON, would
acquire joint control of Veba Oel under certain conditions
compatible with the common market and the EEA Agreement.
The grounds of the present application relate to the omission of
the Commission to consider, in this Decision, the competition
issues raised by the combination of BP and Veba Oel, so far as
their supply of merchant cumene is concerned.

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on April 2002 by SFT Gondrand
Frères of Paris, represented by Mireille Famchon, lawyer, with
an address for service in Luxembourg.

C 156/34

EN

Official Journal of the European Communities

29.6.2002

The applicant claims that the Court should:

Finally, the applicant argues that it cannot be accused of
deception and that it has not acted with manifest negligence.

— annul Decision REM 06/01 of 14 January 2002 and allow
a rebate of the anti-dumping duties imposed to SFT
Gondrand Frères.

Pleas in law and main arguments

The applicant is an authorised customs agent. In 1997 it
released for circulation three cargo loads of urea ammonium
nitrate solution from Poland. When making the customs
declaration the applicant applied for an exemption from anti-
dumping duty which applies to imports of that product from
Poland. Following checks, the French customs authorities took
the view that anti-dumping duty was due and demanded
payment of the customs duty from the applicant.

The applicant then requested a rebate of the anti-dumping
duty and the corresponding VAT. That request was sent by the
French authorities to the Commission, which refused a rebate
of the anti-dumping duties. The applicant is challenging that
decision in this case.

The applicant claims that anti-dumping duties are not payable,
as a result of EC Regulation No 3319/94 (1). The applicant
states that the goods were invoiced directly by the Polish
company, Zaklady Azotowe Pulawy, to a French company,
Evertrade. The price of the goods was, furthermore, higher
than the minimum import price. In those circumstances the
applicant claims that to subject the contested imports to anti-
dumping duties is unjustified.

The applicant also claims that it was justifiable for the duties
to be subject to a rebate in this case in the light of one
particular factor. According to the applicant,
the idea is
to prevent dumping by means of import routes involving
intermediate companies in third countries. That danger has
been averted here, since the first buyer from the Polish exporter
was a French company. Furthermore, the regulation in question
poses difficulties of interpretation. The applicant claims that
the French authorities interpreted it in the same way as the
applicant. It also adds that its omission is a purely formal one
and has not had any real effect on the proper functioning of
the customs system.

(1) Council Regulation (EC) No 3319/94 of 22 December 1994
imposing a definitive anti-dumping duty on imports of urea
ammonium nitrate solution originating in Bulgaria and Poland,
exported by companies not exempted from the duty, and col-
lecting definitively the provisional duty imposed (OJ 1994 L 350,
p. 20).

Action brought on 15 April 2002 by Grupo El Prado-
Cervera, S.L. against Office for Harmonisation in the
Internal Market

(Case T-117/02)

(2002/C 156/64)

(Language of the case: Spanish)

An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 15 April 2002 by Grupo El Prado-
Cervera, S.L., whose registered office is at Valencia (Spain),
represented by Patricia Koch Moreno.

The applicant claims that the Court should:

— declare the Decision of 12 February 2002 of the First
Board of Appeal of the OHIM rejecting the opposition
filed against Community trade mark application No
1021229, CHUFAFIT, in Classes 29 and 31 incompatible
with Article 8(1)(b) of Regulation (EC) No 40/94 on the
Community Trade Mark and annul that decision;

— declare that there is a likelihood of confusion between
Community trade mark application No 1021229, CHU-
FAFIT, in classes 29 and 31, and Spanish trade mark
No 1778419, CHUFI, registered in respect of goods in
Class 29, and Spanish trade mark No 2063328, CHUFI,
registered in respect of goods in Class 31;

— refuse Community trade mark application No 1021229,

CHUFAFIT, in Classes 29 and 31; and, finally,

— order the defendant and, if appropriate, the intervener to

pay the costs of the proceedings.