Case C-342/04 P: Appeal brought on 10 August 2004 by the Hauptverband der Deutschen Bauindustrie e.V., Kaefer Isoliertechnik GmbH & Co. KG and Geschäftsführer Jürgen Schmoldt against the order made on 25 May 2004 by the Third Chamber of the Court of First Instance of the European Communities in Case T-264/03 between (i) Jürgen Schmoldt, Kaefer Isoliertechnik GmbH & Co. KG and Hauptverband der Deutschen Bauindustrie e.V. and (ii) the Commission of the European Communities
Date: 2004-10-23
Institutions: Court of Justice
Subjects: European Commission, action for annulment (EU), appeal, technical standard, thermal insulation

23.10.2004

EN

Official Journal of the European Union

C 262/17

Annex II to Directive 85/337/EEC, as amended,
includes in
Point 10(b), among the projects which may have to be the
subject of an environmental impact assessment, urban-develop-
ment projects, including the construction of shopping centres
and parking facilities. The Spanish legislation reduces that
requirement so as to apply only to projects outside urban
areas. The Commission considers that that reduction of scope,
which generally excludes the taking into consideration of
criteria or thresholds relating to the dimensions and nature of
the projects, goes beyond the degree of latitude available to the
Member States under Articles 2(1) and 4(2) of Directive
85/337/EEC, as amended.
is clear from an
analysis of the State and Autonomous Community legislation
on town planning and of the Autonomous Community legisla-
tion on environmental impact assessments that urban-develop-
ment projects on urban land and developable land are not, in
most of the Autonomous Communities, subject to environ-
mental impact assessment.

In addition,

it

Because the domestic legislation was not properly amended so
as to conform with Annex II to Directive 85/337/EEC, as
amended, the Spanish authorities did not carry out an environ-
mental
for a leisure centre at Paterna
(Valencia), the only explanation given for not doing so being
that it was to be constructed in an urban area.

impact assessment

(1) OJ L 175 of 5.7.1985, p. 40.
(2) Council Directive

of 3 March 1997 amending Directive

85/337/EEC, OJ L 73 of 14.3.1997, p. 5.

The appellants claim that the Court should:

— set aside the order and refer the case back to the Court of

First Instance;

— order the defendant to pay the costs of the dispute.

Pleas in law and main arguments

Contrary to the findings of the Court of First Instance, the
appellants are individually concerned by the Commission deci-
sion contested in the main proceedings.

The appellants put forward eight grounds of appeal.

1) The contested decision proceeds on an incorrect

the ad hoc working party of

factual
basis: there is incontestably no report of 22 November
2002 of
the Standing
Committee on Construction. The working party set up at
the 55th meeting of the Standing Committee on 10/11
September 2002 under the objection procedure pursuant to
Article 5(1) of Directive 89/106/EEC never met and/or
adopted such a report.

Appeal brought on 10 August 2004 by the Hauptverband
der Deutschen Bauindustrie e.V., Kaefer Isoliertechnik
GmbH & Co. KG and Geschäftsführer Jürgen Schmoldt
against the order made on 25 May 2004 by the Third
Chamber of the Court of First Instance of the European
Communities
Jürgen
Schmoldt, Kaefer Isoliertechnik GmbH & Co. KG and
Hauptverband der Deutschen Bauindustrie e.V. and (ii) the
Commission of the European Communities

in Case T-264/03 between (i)

(Case C-342/04 P)

(2004/C 262/30)

An appeal against the order made on 25 May 2004 by the
Third Chamber of the Court of First Instance of the European
Communities in Case T-264/03 between (i) Jürgen Schmoldt,
Kaefer Isoliertechnik GmbH & Co. KG and Hauptverband der
Deutschen Bauindustrie e.V. and (ii) the Commission of the
European Communities was brought before the Court of Justice
of the European Communities on 10 August 2004 by the
Hauptverband der Deutschen Bauindustrie e.V., Kaefer Isolier-
technik GmbH & Co. KG and Geschäftsführer [manager] Jürgen
Schmoldt, represented by Prof. Hans-Peter Schneider, Romin-
teweg 3, D-30559 Hanover.

2) The third appellant did not bring an action ‘on a personal
basis’: the third appellant is incontestably manager of the
federal division for ‘heat, cold, acoustic and fire insulation’
of the first appellant, which is an association of the under-
takings in Germaany using construction products in that
field, and is employed as such with the first appellant. His
official tasks include representing the first appellant and the
undertakings affiliated to it in the context of the relevant
national and European standardisation work.

3) Community law lays down procedural guarantees for the
appellants. The procedural guarantees
relating to the
Standing Committee on Construction that are contained in
Article 5(1) of Directive 89/106/EEC and in the seventh
recital in its preamble must also be for the benefit of those
whom the Standing Committee professionally involves as an
ad hoc working party in the opinion required under Article
5(1).

4) In the procedure

under Article 5(1) of Directive
89/106/EEC, the third appellant as member of the ad hoc
working party of the Standing Committee on Construction
represented not only the first appellant but, of course, also
the second appellant as an affiliated undertaking. The
second appellant is incontestably a member of the first
appellant's federal division for ‘heat, cold, acoustic and fire
insulation’.

5) The second appellant made clear to the Court of First
Instance, using four instances by way of example, that there
was interference with ongoing contracts.

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?