Case T-413/03: Action brought on 15 December 2003 by Shandong Reipu Biochemicals Co. Ltd. against the Council of the European Union
Date: 2004-03-06
Institutions: Court of First Instance
Subjects: China, Council of the European Union, action for annulment (EU), anti-dumping duty, chemical product, import, originating product

C 59/24

EN

Official Journal of the European Union

6.3.2004

Pleas in law and main arguments

By Decision K(2003) 3426 of 1 October 2003 the Commission
found that the applicant and four other undertakings had
infringed Article 81(1) EC by virtue of their participation in a
complex, single and continuing agreement and in concerted
practices in the sorbate sector, through which they agreed
inter alia target prices. A fine of EUR 99 million was imposed
on the applicant.

The applicant challenges the decision and claims that the
Commission infringed the principle of good administration by
unlawfully giving preferential treatment to another undertak-
ing in the administrative procedure. Both undertakings cooper-
ated with the Commission at the end of 1998 and the applicant
claims that the other undertaking has been given an unlawful
advantage.

The applicant complains that there were irregularities in the
conduct of the procedure at that time and also that despite its
requests the Commission has refused to grant it access to
Commission documents. The Commission has already allowed
access to some internal documents in the context of general
inspection of documents and it can therefore no longer rely
on general confidentiality of internal documents connected
therewith. Furthermore, a complete version of the decision, or
a version which is sufficiently comprehensible, has not been
supplied to the applicant, information in the first part of the
decision having been blanked out without justification, thus
making it impossible inter alia to comprehend how the fines
were calculated.

Moreover, the applicant claims that there were errors of
assessment and of law in connection with the fixing of the
fine. It complains that the basic amount is disproportionate
because it has not been treated in the same way as other
participants in the procedure.
It also complains that the
Commission wrongly inferred that its actions had detrimental
consequences and that ‘senior management’ participated in the
cartel. The applicant submits that the basic amounts of the
fine calculated according to groups are wrong because, in
particular,
the Japanese
manufacturers have not been taken into account. The applicant
also challenges, on the merits, the further additional fine of
30 % for its alleged position as ‘ringleader’ and also the further
addition of 50 % for recidivism. With regard to appraisal of its
cooperation, the applicant complains that the Commission
wrongly failed to classify it as the first cooperating undertaking.

the additional cartel activities of

Finally, the applicant complains that owing to the Com-
mission’s lack of activity in the first stage of the procedure, the
length of the procedure was unreasonable within the meaning
of Article 6(1) ECHR and complains that the order to desist is
unlawful because the relevant business has been sold in the
meantime.

Action brought on 15 December 2003 by Shandong
Reipu Biochemicals Co. Ltd. against the Council of the
European Union

(Case T-413/03)

(2004/C 59/40)

(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 15 December 2003 by Shandong Reipu
Biochemicals Co. Ltd., Shandong, (People’s Republic of China),
represented by O. Prost, lawyer.

The applicant claims that the Court should:

— annul Article 1 of Council Regulation (EC) No 1656/
2003 of 11 September 2003 imposing a definitive anti-
dumping duty and collecting definitely the provisional
duty imposed on imports of para-cresol originating in
the People’s Republic of China (OJ 2003 L 234, p. 1) as
long as it imposes a 12,3 % duty on imports of products
manufactured by the applicant;

— ask the Council to pay the costs.

Pleas in law and main arguments

Moreover, the applicant complains that a previous penalty
imposed in the United States in regard to the same matter was
not taken into account and relies in that regard on the principle
of ne bis in idem which also applies in relationships with non-
member countries. Although that principle does not preclude
further proceedings, it requires prior penalties to be taken into
account.

The applicant is established in the People’s Republic of China
and produces and exports para-cresol to the European Union.
The applicant contests Regulation (EC) No 1656/2003 which
imposes a definitive duty on imports of para-cresol, originating
in the People’s Republic of China.

6.3.2004

EN

Official Journal of the European Union

C 59/25

The applicant submits that the Council failed to determine the
normal value in an appropriate and not unreasonable manner
within the meaning of Article 2(5) of Regulation (EC) No 384/
96 (1), as modified, and in conformity with its duty of due care.
The Commission, who initiated an anti-dumping procedure
under Article 5 of the Regulation, should not have ignored the
anti-dumping rule according to which costs of by-products
should not be taken into account, but instead should be
deducted, in the normal value determination, in order to meet
the need for a normal value determined in an appropriate and
not unreasonable manner. According to the applicant, the
Commission was aware of the difference between the costs of
production related to the production of para-cresol, on the
one hand, and the costs of production related specifically to
the by-products (sodium sulfite and mixed phenol), on the
other hand. By extending the scope of the investigation to the
two by-products and by taking into account the by-products
in the normal value determination, the Commission violated
the duty of due diligence.

Furthermore, the applicant claims that the Council failed to
respect the duty of good administration and that it violated
Article 2 of Regulation (EC) No 384/96 by failing to calculate
a normal value for the like product only.

(1) Council Regulation (EC) No 384/96 of 22.12.1995 on protection
against dumped imports from countries not members of the
European Community (OJ L 56 of 6.3.1996, p. 1).

Action brought on 19 December 2003 by Angel Angelidis
against the European Parliament

(Case T-416/03)

(2004/C 59/41)

(Language of the case: French)

An action against the European Parliament was brought before
the Court of First Instance of the European Communities
on 19 December 2003 by Angel Angelidis, resident
in
Luxembourg, represented by Eric Boigelot, lawyer.

The applicant claims that the Court should:

— annul

the decision of

the
European Parliament taken on 4 March 2003 definitively
adopting the applicant’s staff report for 2001;

the Secretary General of

— annul that staff report for 2001;

— annul

the implied decision to reject

the applicant’s
complaint submitted on 27 May 2003 in accordance
with Article 90(2) of the Staff Regulations and seeking
the annulment of the contested decision;

— order the defendant to pay to the applicant the sum of
EUR 20 000 assessed on an equitable basis, subject to
increase or decrease in the course of the proceedings, in
respect of damages for non-material harm and harm to
his career, on the basis both of substantial irregularities
and of significant delay in the writing of the 2001 report
in a particularly distressing period for the applicant;

— order the defendant to pay the costs in accordance with
Article 87(2) of the Rules of Procedure of the Court of
First Instance.

Pleas in law and main arguments

The applicant claims, firstly, a breach of Articles 26 and 43 of
the Staff Regulations, of the general provisions for giving effect
to Article 43 as adopted by the Bureau of the European
Parliament on 8 March 1999 and of the instructions relating
to the procedure for the writing of staff reports.

He also pleads misuse of powers and infringement of general
principles of law, such as respect for the rights of the defence,
the principle of good administration, the principle of the
protection of legitimate expectations and the duty to have
regard for the welfare of officials, the principle of equal
treatment and those general principles requiring the AIPN to
take a decision only on the basis of legally permissible grounds,
namely those which are pertinent and not tainted by a manifest
error of assessment, fact or law.

Action brought on 22 December 2003 by Fédération
Internationale des Maisons de l’Europe (FIME) against the
Commission of the European Communities

(Case T-417/03)

(2004/C 59/42)

(Language of the case: French)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 22 December 2003 by Fédération
Internationale des Maisons de l’Europe, established in Saar-
brücken (Germany), represented by Pierre Soler-Couteaux,
lawyer.