Case T-429/04: Action brought on 25 October 2004 by Trubowest Handel GmbH and Mr Viktor Makarov against the Council of the European Union and the Commission of the European Communities
Date: 2005-02-05
Institutions: Court of First Instance
Subjects: Council of the European Union, European Commission, anti-dumping duty, appeal to the Court (EU), financial loss, indemnification, restriction on competition, tube

C 31/24

EN

Official Journal of the European Union

5.2.2005

Action brought on 25 October 2004 by Trubowest Handel
GmbH and Mr Viktor Makarov against the Council of the
European Union and the Commission of the European
Communities

— EUR 150 000.00 by way of compensation to Mr Makarov
for the moral prejudice that he suffered together with
default interest in the rate of 8 % annually on this amount;

(Case T-429/04)

(2005/C 31/47)

— order that all the costs occasioned by the applicants in the
course of the present proceedings be borne by the Council
and the Commission.

(Language of the case: English)

Pleas in law and main arguments

An action against the Council of the European Union and the
Commission of the European Communities was brought before
the Court of First Instance of the European Communities on 25
October 2004 by Trubowest Handel GmbH, Cologne
(Germany), and Mr Viktor Makarov, Cologne (Germany), repre-
sented by Dr K. Adamantopoulos and E. Petritsi, lawyers, with
an address for service in Luxembourg.

The applicant claims that the Court should:

— order the European Community,

in accordance with the
second paragraph of Article 288 of the EC Treaty, to make
good the damage suffered as a result of the adoption of the
definitive anti-dumping measures prescribed by the anti-
dumping Regulation, by awarding the amounts of

— EUR 118 058.46 to Trubowest by way of compensation
for damages, together with default interest on this amount
in the rate of 8 % annually;

— EUR 397 916.91

(EUR 277 939.37 + 63 448.54 + 56 529. 00)
to Mr
Makarov by way of compensation for damages, together
with default interest on this amount in the rate of 8 %
annually;

The first applicant is an importer of seamless pipes and tubes
in the European Community and the second applicant is its
managing director. By their application they seek to be
compensated for the damage they allegedly suffered by reason
of the adoption of Regulation 2320/97 (1) imposing definitive
anti-dumping duties on imports of certain seamless pipes and
tubes of iron or non-alloy steel originating in Hungary, Poland,
Russia, the Czech Republic, Romania and the Slovak Republic.

The applicants argue that in the context of proceedings under
Article 81 EC, a fine was imposed on several community
producers of seamless pipes and tubes (2). According to the
applicants, it is very likely, if not certain, that the anti-competi-
tive conduct of the seamless pipes and tubes producers affected
the injury and causality analysis of the anti-dumping proceed-
ings, given the overlap in the product scope, in the companies
involved and in the periods of investigation of the competition
and anti-dumping proceedings. Nevertheless,
the applicants
contend, the Commission entirely failed to take into account
that anti-competitive conduct when determining the injury
caused by the allegedly dumped imports, as required by Regu-
lation 384/1996 (3).

— EUR 128 000.00 to Trubowest loss of profit for the period
between 2000 and 2004, together with default interest on
this amount at the rate of 8 % annually; in the alternative a
sum due to Trubowest by way of compensation for damage
for loss of profit for the period between 2000 and 2004, to
be assessed during the proceedings, following an interlocu-
tory judgment of the Court, by agreement between the
parties; and

On the above basis the applicants invoke a breach of Regu-
lation 384/1996 as well as of the obligation of good and sound
administration, due care and diligence. They further argue that
the Council and the Commission later recognised that
the
impact of the anti-competitive conduct has affected the anti-
dumping investigation and, by Regulation 1322/2004 (4)
considered it no longer appropriate to apply the measures
imposed by Regulation 2320/1997.

5.2.2005

EN

Official Journal of the European Union

C 31/25

The applicants reason that had the Council and the Commis-
sion not violated the above rules and obligations, Regulation
2320/1997 might never have been adopted and the applicants
might never have incurred the damage they incurred because
of
it. The applicants therefore seek compensation for that
damage which, in the case of the first applicant takes the form
of a restitution of duties it actually paid under Regulation
2320/1997 as well as compensation for loss of profit. The
second applicant requests compensation for the amounts he
paid under Regulation 2320/1997, loss of profit due to non-
payment of his director's salary, legal costs allegedly incurred as
well as moral prejudice damage.

(1) Council Regulation (EC) No 2320/97 of 17 November 1997, OJ L

322 , 25.11.1997, p. 1.

(2) 2003/382/EC, Commission Decision of 8 December 1999 relating
to a proceeding under Article 81 of the EC Treaty (Case IV/E-1/
35.860-B seamless steel tubes) (notified under document number
C(1999) 4154), OJ L 140 , 6.6.2003, p. 1.

(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 L 56 , 6.3.1996, p. 1

(4) Council Regulation (EC) No 1322/2004 of 16 July 2004 amending
Regulation (EC) No 2320/97 imposing definitive anti-dumping
duties on imports of certain seamless pipes and tubes of iron or
non-alloy steel originating in, inter alia, Russia and Romania OJ L
246 , 20.7.2004, p. 10

Action brought on 25 October 2004 by Nomura Principal
Investment plc and Nomura International plc against the
Commission of the European Communities

(Case T-430/04)

(2005/C 31/48)

(Language of the case: English)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 25 October 2004 by Nomura Prin-
Investment plc and Nomura International plc, London
cipal
(United Kingdom), represented by C.-D. Ehlermann, F. Louis, A.
Vallery, G. A. Gutermuth and C. Duvernoy, lawyers.

Pleas in law and main arguments

The contested decision was taken under the procedure estab-
lished by Section 3 of Annex IV of the Accession Treaty to the
European Union, for the review, by the Commission, of State
aid measures that the new Member States adopted prior to
their accession and that
their authorities notified to the
Commission before 1 May 2004. The contested decision deter-
mines that pre-accession aid measures that the Czech Republic
granted to the Czech bank Ceskoslovenska obchodni banka
(‘CSOB’) are not ‘applicable after accession’ within the meaning
of Section 3 of Annex IV of the Accession Treaty and therefore
not subject to the Commission's review for substantive confor-
mity with the EU State aid rules.

The applicant submits that this decision should be annulled on
the grounds that the Czech aid measures in question are applic-
able after accession. According to the applicant, the contested
decision violates Section 3, Annex IV of the Accession Treaty,
Article 253 EC, Article 88 EC and Regulation 659/1999 (1) by
applying an incorrect definition of ‘measures still applicable’
after accession.

The applicant further claims that in adopting the contested
decision, the Commission misused its powers in violation of
Section 3, Annex IV of the Accession Treaty and Article 88 EC
by redefining ‘measures still applicable’ to avoid review of a
measure adopted by an accession country that would have
fallen under the Commission's prior definition of this legal
concept.

The applicant also submits that the Commission erred in law in
violation of Section 3, Annex IV of the Treaty of Accession and
Article 88 EC by failing to open the formal investigative proce-
dure despite the continuing open and unresolved factual issues
and the many doubts concerning the legality of the notified
measures. It also erred in law by misapplying its own definition
for post-accession applicability of pre-accession aid measures
granted by the Czech Republic to guarantees for litigation risks
and other claims issued by the Czech National Bank to CSOB.
Finally, it erred both in law and in fact by failing to correctly
investigate the facts relating to the aid measures granted by the
Czech State to CSOB.

The applicant claims that the Court should:

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article 93 of the EC
Treaty, OJ L 83, 27.3.1999, p. 1.

— Annul the Commission's decision of 14 July 2004 in State
aid case No CZ 46/2003 - Czech Republic (Investiÿní a
poštovní banka, a.s.);

— Order the Commission to pay the costs of the proceedings.