Case T-138/02: Action brought on 26 April 2002 by Nanjing Metalink International Co. Ltd. against the Council of the European Union
Date: 2002-07-13
Institutions: Court of First Instance
Subjects: China, Council of the European Union, action for annulment (EU), anti-dumping duty, ferro-alloy, import, market economy, originating product

13.7.2002

EN

Official Journal of the European Communities

C 169/39

on Irish Sugar plc. The applicant would point out in this
regard that, as a result of the judgment of the Court of First
instance of 7 October 1999 in Case T-228/97 Irish Sugar -v-
Commission (1), the fine imposed on Irish Sugar by Com-
mission Decision 97/624/EC of 14 May 1997, relating to a
proceeding pursuant to Article 86 of the EC Treaty, was
reduced by 916 674 Euros. The defendant refused to pay
interest on this amount.

— in the alternative, partially annul Decision C (2001) 4447
final of the Commission of the European Communities
of 15 January 2002 to the extent that the claim for
repayment established by the Commission in Article 1
exceeds EUR 2 808 319,95;

— order the defendant to pay all the costs.

According to the Commission, the implied Decision not to
pay interest, i.e. the payment of the principal sum without
the
interest on 4 January 2000, has become definitive,
applicant not having contested it within the two month time
limit, as provided by Article 230 of the EC Treaty.

The applicant submits in this regard that this reasoning is
materially wrong. Firstly, the initial request was not for actual
payment but for confirmation that interest would be paid; for
advice as to the amount thereof and for assistance in this
matter. Secondly, there is no rule in EC Law according to
which silence must be taken to mean a refusal, unless provision
is specifically made for this. Thirdly, not only is payment of
the refund of 916 674 Euros not a refusal of the initial request
it is also, within the
for confirmation regarding interest,
meaning of Article 230 EC, not an actionable act. It follows
that the Commission’s contention that the applicant should
have challenged it at the time is legally erroneous.

(1) [1999] ECR II-2969.

Action brought on 29 April 2002 by Pollmeier Malchow
GmbH & Co. KG against the Commission of the European
Communities

(Case T-137/02)

(2002/C 169/69)

(Language of the case: German)

Pleas in law and main arguments

In Article 1 of the contested decision, the Commission found
that the aid amounting to EUR 3 650 860 granted by Germany
to Pollmeier GmbH, Malchow, was incompatible with the
common market. The applicant is challenging that decision
and claims that the declaration of partial incompatibility with
the common market of
infringes
Community law. All the grounds on which the decision is
founded are based on errors of law or on a manifestly incorrect
assessment of the facts.

the aid granted to it

The applicant claims that it satisfied the SME criteria defined
in the Commission’s Recommendation of 3 April 1996
concerning the definition of small and medium-sized enter-
prises (1) at the time when the aid was granted. Moreover, the
applicant did not circumvent those criteria.

the applicant submits that a review of the
Furthermore,
economic integration in individual cases which is not based
on the SME criteria is illegal because it is precisely those criteria
which must be used to determine whether or not there is
economic integration. In any event, there is no economic
integration.

Alternatively, the applicant submits that the claim for repay-
ment is too high and that its calculation is unclear.

(1) OJ 1996 L 107, p. 4.

Action brought on 26 April 2002 by Nanjing Metalink
International Co. Ltd. against the Council of the European
Union

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 29 April 2002 by Pollmeier
Malchow GmbH & Co., Malchow (Germany), represented by
S. Völcker and J. Heithecker, lawyers.

The applicant claims that the Court should:

(Case T-138/02)

(2002/C 169/70)

(Language of the case: English)

— annul in its entirety Decision C (2001) 4447 final of the
Commission of the European Communities of 15 January
2002;

An action against the Council of the European Union was
brought before the Court of First Instance of the European

C 169/40

EN

Official Journal of the European Communities

13.7.2002

Communities on 26 April 2002 by Nanjing Metalink Inter-
national Co. Ltd., represented by Mr Paul Waer of Vermulst
Waer & Verhaeghe, Brussels (Belgium).

The applicant claims that the Court should:

— annul Article 1 of Council Regulation (EC) no 215/2002
of 28 January 2002 in so far as it imposes an anti-
dumping duty on Nanjing Metalink International Co.
Ltd.;

— order the Council to pay the costs of the application.

Pleas in law and main arguments

The applicant is a company in the People’s Republic of China
producing ferro molybdenum. In the contested Decision (1),
the Council imposed definitive anti-dumping duties on imports
of ferro molybdenum originating from China.

The applicant states that it was granted Market Economy
Treatment in the Regulation imposing a provisional duty (2),
which resulted in a reduced anti-dumping duty for the
applicant. This treatment was revoked in the contested
Decision. The applicant claims that by revoking the Market
Economy Treatment which was granted on the basis of the
same investigation, the Council breached Article 2(7) (c) of
Council Regulation (EC) no 384/96 (3). According to the
follow the procedures
applicant,
prescribed in Regulation 384/96 for
the revocation of
Market Economy Treatment. Instead, the initial determination
made should have remained in force until a new investigation
was conducted.

the Council did not

Secondly, the applicant submits that by revoking the grant of
Market Economy Treatment, the Council exceeded its powers
under Council Regulation (EC) no 384/96. According to the
applicant, the Council does not have the power to revoke a
grant of Market Economy Treatment without instituting a
fresh investigation.

(1) Council Regulation (EC) No 215/2002 of 28 January 2002
imposing definitive anti-dumping duties on imports of ferro
molybdenum originating in the People’s Republic of China (OJ
L 35, 6.2.2002, p. 1).

(2) Commission Regulation (EC) No 1612/2001 of 3 August 2001
imposing a provisional anti-dumping duty on imports of ferro
molybdenum originating in the People’s Republic of China (OJ
L 214, 8.8.2001, p. 3).

(3) 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, 6.3.1996, p. 1).

Action brought on 29 April 2002 by the public limited
company Idiotiko Institouto Epangelmatikis Katartisis
N. Avgerinopoulou — Anagnorismenes Technikes
Idiotikes Epangelmatikes Scholes, the Panellinia Enosi
Idiotikon Institouton Epangelmatikis Katartisis and the
Panellinia Enosi Idiotikis Technikis Epangelmatikis Ekpai-
defsis kai Katartisis against the Commission of the Euro-
pean Communities

(Case T-139/02)

(2002/C 169/71)

(Language of the case: Greek)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 29 April 2002 by Idiotiko Institou-
to Epangelmatikis Katartisis N. Avgerinopoulou — Anagnoris-
menes Technikes Idiotikes Epangelmatikes Scholes, a public
limited company whose seat is in Athens, the Panellinia Enosi
Idiotikon Institouton Epangelmatikis Katartisis, whose seat
is in Athens, and the Panellinia Enosi
Idiotikis Technikis
Epangelmatikis Ekpaidefsis kai Katartisis, whose seat is in
Athens, represented by Th. Antoniou and Kh. Tsiliotis, of the
Athens Bar.

The applicants claim that the Court should:

— allow the application;

— annul

the contested decision of 27 February 2002
adopted by the Directorate-General for Employment and
Social Affairs of the Commission with the objective of
invalidating the unlawful refusal of the Commission —
for the reasons set out in the grounds of the application —
to remove the unlawful distinction between private and
public vocational training bodies so far as concerns the
financing exclusively of the latter by the third Community
support framework and, in particular, by the operational
programme ‘Education and Initial Vocational Training II’.

Pleas in law and main arguments

— Infringement of provisions of Council Regulation

No 1260/1999.

— Infringement of provisions of primary law.

— Infringement of the principle of equality laid down by

Article 12 (ex Article 6) of the EC Treaty.

— Infringement of the principle of subsididarity.