Case C-351/04: Reference for a preliminary ruling by the High Court of Justice (England and Wales), Chancery Division, by order of that court dated 22 July 2004, in the case of Ikea Wholesale Ltd against Commissioners of Customs and Excise
Date: 2004-10-23
Institutions: Court of Justice
Subjects: Dispute Settlement Body, EU law, Egypt, India, Pakistan, anti-dumping duty, import, interpretation of the law, textile product

C 262/18

EN

Official Journal of the European Union

23.10.2004

6) The first appellant was — not that it would matter — a

‘negotiatior’.

7) The first appellant was directly involved in the European
standardisation work and the procedure pursuant to Article
5(1) of Directive 89/106/EEC.

8) The Court's decision as to costs was inappropriate.

Reference for a preliminary ruling by the High Court of
Justice (England and Wales), Chancery Division, by order
of that court dated 22 July 2004,
in the case of Ikea
Wholesale Ltd against Commissioners of Customs and
Excise

(Case C-351/04)

(2004/C 262/31)

Reference has been made to the Court of Justice of the Euro-
pean Communities by an order of the High Court of Justice
(England and Wales), Chancery Division, dated 22 July 2004,
which was received at the Court Registry on 16 August 2004,
for a preliminary ruling in the case of Ikea Wholesale Ltd and
Commissioners of Customs and Excise on the following ques-
tions:

i) in the light of the findings of the Panel of the DSB of the
WTO in its report dated the 30th October 2000, paragraph
7.2(g) and (h), WT/DS1412/R and of the Appellate Body of
the DSB of the WTO in its decision dated the 1st March
2002, paragraphs 86 to 87, WT/DS1141/AB/R,
is all or
part of Council Regulation (EC) No 2398/97 of the 28
November 1997 imposing a definitive anti-dumping duty
on imports of cotton-type bedlinen originating in Egypt,
India and Pakistan (1) incompatible with Community law, in
that it:

a) applied a wrong methodology in calculating the
amounts for selling, general and administrative expenses
and for profits, contrary to Article 2(6)(a) of Council
Regulation (EC) No 384/96 of the 22 December 1995
on protection against dumped imports from countries
not members of the Community (2), as amended, and
Article 2.2.2(ii) of the Anti-Dumping Agreement;

b) applied a wrong methodology incorporating the practice
in determining the existence of dumping

of ‘zeroing’

margins when comparing normal value with export
price, contrary to Article 2(11) of Regulation 384/96
and Article 2.4.2. of the Anti-Dumping Agreement; and/
or

c) failed to evaluate all the relevant injury factors having a
bearing on the state of the Community industry and
erred in determining the injury to the Community
industry by relying on evidence obtained from compa-
nies outside the Community industry, contrary to
Article 3(5) of Regulation 384/96 and Article 3.4 of the
Anti-Dumping Agreement?

ii) are any or all of:

a) Council Regulation No 1644/2001 amending Regu-
lation (EC) No 2398/97 imposing a definitive anti-
dumping duty on imports of cotton-type bedlinen
originating in Egypt, India and Pakistan and suspending
its application with regard to imports originating in
India (3);

b) Council Regulation 160/2002 amending Regulation (EC)
No 2398/97 imposing a definitive anti-dumping duty
on imports of cotton-type bedlinen originating in Egypt,
India and Pakistan and terminating the proceeding with
regard to imports originating in Pakistan (4); and/or

c) Council Regulation (EC) No 696/2002 confirming the
definitive antidumping duty imposed on imports of
cotton-type bedlinen originating in India by Regulation
(EC) No 2398/97, as amended and suspended by
Council Regulation (EC) No 1644/2001 (5);

incompatible with Community law (including Articles 1,
7(1) and 9(4) of Regulation 384/96 read in the light of
Articles 1, 7.1 and 9 of the Anti-Dumping Agreement)
insofar as (i) they were adopted on the basis of a reassess-
information which was collected during the
ment of
original
investigation period, which reassessment showed
that no dumping or lower levels of dumping had taken
place during the original investigation period; but (ii) the
above regulations fail
to provide for reimbursement of
sums already paid pursuant to Regulation 2398/97?

iii) are Regulations 1664/2001, 160/2002 and 696/2002
further incompatible with Articles 7(2) and 9(4) of Regu-
lation 384/96 and the principle of proportionality, in that
they allow for a level of anti-dumping duty, for the period
prior to their entry into force, that is not strictly propor-
tionate to the amount of dumping or injury the duty is
intended to offset?

23.10.2004

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Official Journal of the European Union

C 262/19

iv) do the answers to the above questions differ in respect of

exports originating in India as against Pakistan, given:

a) the procedures followed before DSB of the WTO; and/or

b) the findings of the Commission recorded in Regulations

1664/2001, 160/2002 and 696/2002?

v) in the light of the answers to the above questions:

a) must a national customs authority repay all or part of
the anti-dumping duties which it has collected pursuant
to Regulation 2398/97; and

b) if so, to whom and under what conditions should repay-

ment be made?

(1) OJ L 332, 4.12.1997, p.1.
(2) OJ L 56, 6.3.1996, p.1.
(3) OJ L 219, 14.8.2001, p.1.
(4) OJ L 26, 30.1.2002, p. 1.
(5) OJ L 109, 25.4.2002, p. 1.

undertakings who collect postal
items from the sender and
supply it already sorted to the postal network to the same
access point and under the same conditions as business custo-
mers, and that the universal service provider is not entitled to
refuse to do so on the ground that it is obliged to provide a
universal service?

(1) OJ L 15 of 21.1.1998, p. 14.
(2) OJ L 176, p. 21.

Reference for a preliminary ruling by the Bundesfinanzhof
by order of that court of 22 July 2004 in the case of
Nowaco Germany GmbH against Hauptzollamt Hamburg-
Jonas

(Case C-353/04)

(2004/C 262/33)

Reference for a preliminary ruling by the Verwaltungs-
gericht Köln by order of that court of 30 June 2004 in the
case of mdm Versandservice GmbH against Bundes-
republik Deutschland, joined parties: Deutsche Post AG

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Bundesfinanzhof (Federal
Finance Court)
(Germany) of 22 July 2004, received at the
Court Registry on 16 August 2004, for a preliminary ruling in
the case of Nowaco Germany GmbH against Hauptzollamt
Hamburg-Jonas on the following questions:

(Case C-352/04)

(2004/C 262/32)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Verwaltungsgericht Köln
(Cologne Administrative Court), Germany, of 30 June 2004,
received at the Court Registry on 16 August 2004, for a preli-
minary ruling in the case of mdm Versandservice GmbH
against Bundesrepublik Deutschland (Federal Republic of
Germany), joined parties: Deutsche Post AG, on the following
question:

in the

version brought

Is Article 47(2) EC, read together with Article 95 EC, read
together with the fifth indent of Article 12 of Directive
97/67/EC, (1) and with Article 7(1) of that directive,
in both
cases
into force by Directive
2002/39/EC (2) of the European Parliament and of the Council,
to be interpreted as meaning that where a universal service
tariffs to business customers who
provider applies special
supply postal
items already sorted to the postal network at
points in the delivery chain that are not access points, the
universal service provider must also apply those tariffs to

1. For the purposes of establishing whether a product

in
respect of which recovery of export duty is sought is of
marketable quality, may reliance be placed on Commission
Regulation (EEC) No 1538/91 of 5 June 1991 (1)
intro-
ducing detailed rules for implementing Regulation (EEC) No
1906/90 on certain marketing standards for poultry?

2. In the event that the reply to Question 1 is yes,

(a) Does Article 70 of Council Regulation (EEC) No
2913/92 (2) of 12 October 1992 establishing the Com-
munity Customs Code apply where it is necessary to
establish whether a product in respect of which recovery
of export duty is sought is of marketable quality?

(b) Does the deeming provision as to condition in Article
70(1) of Council Regulation (EEC) No 2913/92 also
apply if only one random sample of the product has
been inspected but the pertinent Community provisions
permit defects in the goods up to a certain quantitative
limit and accordingly require and expressly prescribe
inspection of a specific minimum number of samples to
establish whether that limit has been observed?