Case T-278/03: Action brought on 8 August 2003 by Van Mannekus & Co. B.V. against the Council of the European Union
Date: 2003-11-01
Institutions: Court of First Instance
Subjects: China, Council of the European Union, action for annulment (EU), anti-dumping duty, import, magnesium, originating product, oxide

1.11.2003

EN

Official Journal of the European Union

C 264/31

The applicant claims that the Court should:

Action brought on 8 August 2003 by Van Mannekus &
Co. B.V. against the Council of the European Union

— Annul or vary Commission Decision E(2003)738 Final
of 25 March 2003 concerning recovery of amounts
unduly paid to Dionisia Vlakhaki, formerly an auxiliary
agent, so as to remove from it Article 1(b) thereof and
not to require her to pay to the defendant any of the
amounts mentioned therein in addition to the principal
sum claimed by the defendant and, specifically, not to
require payment of interest on late payment together
with additional amounts calculated up to 23 July 2003
in the amount of two thousand eight hundred and forty-
seven euros and 32 cents (EUR 2 847,32) which is broken
down in accordance with Article 1 of the contested
decision into one thousand three hundred and forty-four
cents (EUR 1 344,04) for the period until 10 April 2001,
one thousand and twenty-three euros and eighty-eight
cents (EUR 1 023,88) for the period from 11 April 2001
until 31 December 2002 and four hundred and seventy-
nine euros and 40 cents (EUR 479,40) for the period
from 1 January 2003 to 23 July 2003 (204 days at
EUR 2,35 per day = EUR 479,40).

— In the alternative, annul or vary contested Decision

E(2003)738 Final of 25 March 2003.

(Case T-278/03)

(2003/C 264/54)

(Language of the case: German)

An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 8 August 2003 by Van Mannekus & Co. B.V.,
Schiedam (Netherlands), represented by H. Bleier, lawyer.

The applicant claims that the Court should:

— annul Council Regulation (EC) No 985/2003 of 5 June
2003 amending the antidumping duty measures imposed
by Council Regulation (EC) No 1334/1999 on imports of
magnesium oxide originating in the People’s Republic of
China (1);

— order the Council of the European Union to pay all the

costs.

— Order the defendant to pay the applicant’s costs.

Pleas in law and main arguments

Pleas in law and main arguments

By the contested decision the applicant was required to repay
to the defendant EUR 13 182,18 by way of principal sum in
respect of amounts unduly paid to her after the expiry of her
contract with the Commission, together with interest in respect
of late payment. The action is directed against the part of the
contested decision concerning payment of interest in respect
of late payment. The applicant maintains that she was wrongly
required to pay interest since her inability to repay the principal
sum due is attributable to her severe financial problems and
her family’s health problems which constitute grounds of force
majeure. Furthermore, she also alleges that she was not invited
to put forward her views before the contested decision was
adopted. Finally, she maintains that, in any event, she cannot
be required to pay interest in respect of the period up to
10 April 2001 because the Commission had tacitly waived its
claim to interest in respect of that period.

By the contested regulation the Council altered the nature of
the antidumping duties on imports of magnesium oxide
originating in the People’s Republic of China on the basis of a
partial interim review. The applicant participated in the review
procedure which preceded the contested regulation as an
importer. It claims that the regulation infringes substantive
Community law in that Council Regulation (EC) No 384/96 (2)
was misapplied to a significant degree.

The applicant argues that it was a misuse of discretion to
initiate a partial interim review ex officio at all. The grounds
set out in the Commission’s notice do not in any event justify
a review. The Commission claimed that the fact that there was
no differentiation between sales made to related parties and
sales made to unrelated parties and between direct and indirect
sales could ‘lead to difficulties in applying the legal provisions’.
That is not true however. There could be no more difficulty in
applying the legal provision.

Further the statement of reasons given in the contested
regulation is different from that which had been set out in the
notice relating to the initiation of the partial interim review.
That means that there was either a lack of formal reasons or a
lack of sufficient grounds for altering the type of duty
substantively. It was a misuse of discretion to differentiate in
the contested regulation between trade with related parties and
trade with unrelated parties and between direct and indirect
sales in the Community.

C 264/32

EN

Official Journal of the European Union

1.11.2003

The applicant further claims that the contested regulation
infringes Regulation (EC) No 384/96 because the partial
interim review does not justify altering the amount of duty.
According to the notice the review should be confined to the
nature of the applicable measure but it went further than that.
In addition the amount of the duty was set entirely arbitrarily.
Regulation (EC) No 384/96 does not provide for the possibility
of using the results of reviews that are over 12 years old. It
does not allow the results of reviews that are older than five
years to be used.

Finally no specific dumping margin was laid down in the final
review and it is impossible to see how a duty of 27,1 % could
be arrived at based on that review.

(1) OJ L 143, p. 1.
(2) 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), most recently
amended by Regulation (EC) No 1972/2002 (OJ L 305, p. 1).

Action brought on 19 August 2003 by British United
Provident Association Limited, BUPA Insurance Limited
and BUPA Ireland Limited against Commission of the
European Communities

(Case T-289/03)

(2003/C 264/55)

(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 19 August 2003 by British United
Provident Association Limited, London, (United Kingdom) and
BUPA Insurance Limited, London,
(United Kingdom) and
BUPA Ireland Limited , Dublin, (Ireland), all represented by
Mr N. Green QC, Mr K. Bacon Barrister, Mr B. Amory, lawyer
and Mr J. Burke, Barrister.

The applicant claims that the Court should:

Pleas in law and main arguments

The applicant provides private medical insurance in Ireland. In
the contested decision, the Commission decided not to raise
any objections
to the risk equalisation scheme to be
implemented by the Irish authorities in the Irish market for
private medical
insurance. According to the applicant, the
effect of this scheme is to grant a subsidy to the dominant
provider of medical insurance, the Voluntary Health Insurance
Board; the subsidy would be funded by a charge to be imposed
on the applicant.

In support of its application, the applicant invokes, firstly, the
misapplication by the Commission of Article 87(1) EC. The
applicant submits that the Commission considered that the
risk equalisation scheme did, in principle, satisfy the conditions
for aid under Article 87(1) EC. However, it decided that the
scheme compensated the Voluntary Health Insurance Board
for public service obligations.

Justice (1). The applicant states that

According to the applicant, the Commission misapplied the
public service compensation test as set out in the jurisprudence
of the Court of
the
obligations identified by the Commission were the require-
ments for private medical insurers in Ireland to follow the
principles of open enrolment, community rating, minimum
benefits and lifetime cover. These are, according to the
applicant, not to be considered as public service obligations or
obligations following the operation of services of general
economic interest. These obligations would rather represent
general regulation of the private medical insurance market,
applicable to all insurers. The applicant furthermore submits
that the Commission did not consider whether these obli-
gations imposed a financial burden on the Voluntary Health
Insurance Board.

The applicant states that the Commission’s alternative basis
for the contested decision was that the risk equalisation scheme
could be approved under Article 86(2) EC. The applicant
submits that the Commission failed to ensure that the con-
ditions for approval under that article were satisfied. According
to the applicant, the relevant private medical insurance obli-
gations were not services of general economic interest. The
applicant furthermore submits that the Commission’s argu-
ments on necessity and proportionality were based on both
errors of reasoning and manifest errors of fact. The applicant
also claims that the Commission did not consider whether the
scheme would affect the development of trade contrary to the
interests of the Community.

— annul

the Commission decision C(2003)1322 fin of

13 May 2003;

— order that the Commission pays the applicant’s costs.

The applicant also submits that the Commission erred in
failing to consider whether the risk equalisation scheme
infringed Article 82 EC taken together with Article 86(1) EC,
Articles 43 and 49 EC and Council Directive 92/49/EEC (2).