Case T-274/02: Action brought on 6 September 2002 by Ritek Corporation and Prodisc Technology Inc. against the Council of the European Union
Date: 2002-11-23
Institutions: Court of First Instance
Subjects: Taiwan, action for annulment (EU), anti-dumping duty, dumping, import, originating product, record, recording

23.11.2002

EN

Official Journal of the European Communities

C 289/27

The applicant furthermore invokes a violation of its right to a
fair trial. According to the applicant, there was no fair and
independent hearing in the matter. The applicant also invokes
a violation of the right of access to documents. In addition, the
Commission violated the principle of good administration by
not dealing with the matter within a reasonable time limit.

Finally, the applicant submits that the Commission has misused
its powers by implementing Article 24 of Regulation (EEC)
4253/88 (1). According to the applicant, Article 24 should
only be used in the event of impropriety. In the present case,
the Commission should have applied Article 23 of
the
regulation to recover the money overpaid as a result of
mistakes.

( 1) Regulation (EEC) No 4253/88 of 19 December 1988, laying down
provisions for implementing Regulation (EEC) No 2052/88 as
regards coordination of the activities of the different Structural
the
Funds between themselves and with the operations of
European Investment Bank and the other existing financial
instruments (OJ 1988 L 374, p. 1).

Action brought on 6 September 2002 by Ritek Corpor-
ation and Prodisc Technology Inc. against the Council of
the European Union

(Case T-274/02)

(2002/C 289/51)

(Language of the case: English)

An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 6 September 2002 by Ritek Corporation,
Hsin Chu Industrial Park, Taiwan R.O.C. and Prodisc Tech-
nology Inc., Taipei Hsien, Taiwan R.O.C, represented by Dr
Konstantinos Adamantopoulos, Barrister, with an address for
service in Luxembourg.

The applicant claims that the Court should:

— declare, pursuant to Article 230 and 231 of the Treaty,
that Council Regulation (EC) 1050/2002 of 13 June 2002
imposing a definitive anti-dumping duty and collecting
definitively the provisional duty imposed on imports of
recordable compact disks originating in Taiwan is null ad
void;

— order that the costs of and occasioned by these proceed-

ings be borne by the defendant.

Pleas in law and main arguments

The applicants are producers of CD-Rs established in Taiwan
and export CD-Rs to the Community. In February 2001, an
anti-dumping complaint was lodged before the Commission
by the Committee of European CD-R Manufacturers. Following
this complaint, the Commission initiated an investigation
regarding imports originating in Taiwan. Provisional anti-
dumping measures were imposed by Commission Regulation
2479/2001 (1). These measures were made definitive by
Council Regulation 1050/2002 (2). The applicants contest the
latter regulation with their present action.

The applicants allege infringement of Articles 2(10) and 2(11)
of Regulation 384/96 on protection against dumped imports
from countries not members of the European Community (3).
According to the applicants, the Council committed a manifest
error in the assessment of the facts and of law by finding that
the applicants engaged in ‘targeted dumping’ practices and
allowed use of the average-to-transaction methodology in the
calculation of the dumping margin of the applicants.

According to the applicants, no exceptional treatment of
certain transactions to certain customers, in certain regions or
in certain time periods, i.e. no targeted dumping, took place
during the investigation period. The applicants submit that
export and domestic price patterns were almost identical and
that
In these
circumstances, there was, according to the applicants, no
place for disguising the effects of dumping through targeted
dumping.

the prices for CD-Rs declined worldwide.

The applicants furthermore claim that by using the average-to-
transaction methodology which refers to constructed normal
the Commission failed to address the purpose of
values,
targeted dumping, which is to conceal dumping by charging
different export prices. According to the applicants,
the
Commission should refer to actual prices when investigating
targeted dumping.

Secondly, the applicants allege infringement of Article 2 of
Regulation 384/96. The applicant claims that the Council
made a manifest error of assessment of the facts in calculating
the dumping margin of the applicants by using the ‘zeroing

C 289/28

EN

Official Journal of the European Communities

23.11.2002

the transactions of

technique’. Using this technique,
the
applicants that are made at a price higher then the average
price, are brought down to a price equal to the average price.
According to the applicants, the Commission did not apply
the average-to-transaction methodology correctly as a result
of using the ‘zeroing technique’. The applicants submit that
the objective of the average-to-transaction methodology is to
ensure a fair comparison and not to yield higher dumping
margins.

( 1) Commission Regulation (EC) No 2479/2001 of 17 December
2001 imposing a provisional anti-dumping duty on imports of
recordable compact disks originating in Taiwan (OJ L 334, p. 8).
( 2) Council Regulation (EC) No 1050/2002 of 13 June 2002 imposing
a definitive anti-dumping duty and collecting definitively the
provisional duty imposed on imports of recordable compact disks
originating in Taiwan (OJ L 160, p. 2).

( 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 1996, L 56, p. 1).

Action brought on 12 September 2002 by Forum 187 asbl
against the Commission of the European Communities

(Case T-276/02)

(2002/C 289/52)

(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 12 September 2002 by Forum 187
asbl, Brussels, Belgium, represented by Mr Alastair Sutton,
barrister and Mr James Killick, barrister.

The applicant claims that the Court should:

— Annul the Commission’s Notice of its decision to initiate
the procedure laid down in Article 88 (2) of the EC Treaty
published in the OJ C 147, p. 2 on 20 June 2002.

— Order the Commission to pay the costs.

Pleas in law and main arguments

The applicant is an association bringing together more than
230 multinational companies, who together have invested
hundreds of millions of euros in the establishment of coordi-
nation centres in Belgium, based on legislation dating from the
early 1980s permitting the establishment of coordination
centres for multinational companies.
It explains that this
legislation was found by the Commission on two separate
occasions in 1984 and 1987 to fall outside Community rules
on state aids and that, encouraged by these findings, the
coordination centres invested in Belgium and have, over the
last 15 years, significantly expanded their presence there.

The applicant states that the Commission’s decision to initiate
the procedure laid down in Article 88(2) EC in respect of this
Belgian legislation (the contested decision) abruptly, arbitrarily
and without any adequate reasoning re-classifies it as an aid
within the meaning of Article 87(1) and reaches preliminary
negative conclusions as to its compatibility with the common
market, thereby ‘at a stroke’ removing legal certainty and
infringing the legitimate expectations of the Belgian Coordi-
nation Centres.

The applicant submits that the Commission’s decision is
unlawful, being in breach of Article 1(b)(v) of Regulation 659/
1999, and has no other basis in Community law. The
Commission’s alternative legal basis for its decision to the
effect that it is entitled to reverse a decision taken 15 years
earlier (either under Article 1(b)(v) or under general adminis-
trative principles) is likewise unfounded in Community law
and should be annulled. In particular, this alternative legal
basis for the Commission decision infringes the principles of
legal certainty and legitimate expectations. The applicant
considers therefore that, especially taking into account the
novel legal basis upon which the decision purports to be taken
and the substantial economic interests involved, the decision
is inadequately reasoned, in breach of Article 253, and should
be annulled.

Action brought on 10 September 2002 by Dyson Limited
against the Office for the Harmonisation in the Internal
Market

(Case T-278/02)

(2002/C 289/53)

(Language of the case: English)

— Take such other or further steps as justice may require.

An action against the Office for the Harmonisation in the
Internal Market was brought before the Court of First Instance