Case C-141/08 P: Appeal brought on 7 April 2008 by Foshan Shunde Yongjian Housewares & Hardware against the judgment delivered on 29 January 2008 in Case T-206/07, Foshan Shunde Yongjian Housewares & Hardware v Council of the European Union
Date: 2008-04-07
Institutions: Court of Justice
Subjects: China, Ukraine, anti-dumping duty, appeal, household article, import, market economy, originating product

21.6.2008

EN

Official Journal of the European Union

C 158/11

Questions referred

Other party/parties to the proceedings: Council of the European
Union

(a) Must Article 4(4) of

the 1980 Convention on the law
applicable to contractual obligations (1) be construed as
meaning that it relates only to voyage charter parties and
that other forms of charter party fall outside the scope of
that provision?

(b) If Question (a)

is answered in the affirmative, must
Article 4(4) of the 1980 Convention then be construed as
meaning that, in so far as other forms of charter party also
relate to the carriage of goods, the contract in question
comes, so far as that carriage is concerned, within the scope
of that provision and the applicable law is for the rest deter-
mined by Article 4(2) of the 1980 Convention?

(c) If Question (b) is answered in the affirmative, which of the
two legal bases indicated should be used as the basis for
examining a contention that the legal claims based on the
contract are time-barred?

(d) If the predominant aspect of the contract relates to the
carriage of goods, should the division referred to in Ques-
tion (b) not be taken into account and must then the law
applicable to all constituent parts of the contract be deter-
mined pursuant to Article 4(4) of the 1980 Convention?

With regard to the ground set out in 3.6.(ii) above:

(e) Must the exception in the second clause of Article 4(5) of
the 1980 Convention be interpreted in such a way that the
the 1980
presumptions in Article 4(2),
Convention do not apply only if it is evident from the
circumstances in their totality that the connecting criteria
indicated therein do not have any genuine connecting value,
or indeed if it is clear therefrom that there is a stronger
connection with some other country?

(3) and (4) of

(1) Convention on the law applicable to contractual obligations, opened

for signature in Rome on 19 June 1980.

Appeal brought on 7 April 2008 by Foshan Shunde
Yongjian Housewares & Hardware against the judgment
delivered on 29 January 2008 in Case T-206/07, Foshan
Shunde Yongjian Housewares & Hardware v Council of
the European Union

(Case C-141/08 P)

(2008/C 158/16)

Language of the case: French

Parties

Appellant(s): Foshan Shunde Yongjian Houewares & Hardware
Co. Ltd (represented by: J.-F. Bellis, avocat, G. Vallera, barrister)

Form of order sought

— Annul the judgment under appeal;

— Grant the forms of order sought in the proceedings before
the Court of First Instance in Case T-206/07, that is to say,
annulment of Regulation (EC) No 452/2007 (1) insofar as it
applies to the appellant;

— Order the Council to pay the costs incurred before the

Court of First Instance and the Court of Justice.

Pleas in law and main arguments

The appellant relies on two pleas in law in support of its appeal.

By its first plea, the appellant complains that the Court of First
Instance did not address the first plea which it raised in support
of annulment in rejecting that plea on the basis of a finding
which was manifestly not supported by the documents on the
file, that is to say, that the discussion concerning the interpreta-
tion of Article 2(7)(c) of the Basic Regulation (2) and of para-
graph 44 of the judgment of the Court of First Instance of
14 November 2006 in Case T-138/02 Nanjing Metalink v
Council
[2006] ECR II-4347 was without relevance. As the
Council itself observed in its defence, it is precisely because the
Commission considered that the necessary conditions for the
amendment of the initial determination, as set out in that judg-
ment, were not met that it revoked its final decision granting
the appellant market economy treatment. Therefore, the Court
of First Instance based its reasoning on inaccurate findings and
failed to rule on the interpretation of Article 2(7)(c) of the Basic
Regulation and on the question whether or not that article
allows the Commission to revise, in the course of the procedure,
its initial position on the subject of
the grant of market
economy treatment.

By its second plea, the applicant submits that the Court of First
Instance wrongly concluded that the infringement of its rights
to a fair hearing, despite having been established and declared
by that court, cannot entail the annulment of the contested
regulation on the ground that there is no possibility that the
administrative procedure could have led to a different result.
The debate concerning the interpretation of Article 2(7)(c) of
the Basic Regulation and of paragraph 44 of the judgment in
Nanjing Metalink played a decisive role in the administrative

C 158/12

EN

Official Journal of the European Union

21.6.2008

procedure and, if the Commission had complied with the proce-
dural requirements of Article 20(5) of the Basic Regulation, the
appellant could have validly put forward its own interpretation
of Article 2(7)(c) of the Basic Regulation.

Reference for a preliminary ruling from the Hoge Raad
der Nederlanden lodged on 16 April 2008 — X v
Staatssecretaris van Financiën

(1) Council Regulation (EC) No 452/2007 of 23 April 2007 imposing a
definitive anti-dumping duty and collecting definitively the provi-
sional duty imposed on imports of ironing boards originating in the
People's Republic of China and Ukraine (OJ 2007 L 109, p. 12).
(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 1996 L 56, p. 1).

(Case C-155/08)

(2008/C 158/18)

Language of the case: Dutch

Reference for a preliminary ruling from the Tribunal
Superior de Justicia de Cataluña, Spain lodged on 14 April
2008 — N.N. Renta, S.A. v Generalitat de Catalunya

Hoge Raad der Nederlanden

Referring court

(Case C-151/08)

(2008/C 158/17)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Cataluña, Spain

Parties to the main proceedings

Appellant: X

Respondent: Staatssecretaris van Financiën

Parties to the main proceedings

Questions referred

Applicant: N.N. Renta, S.A.

Defendants: Generalitat de Catalunya

Question referred

Is it compatible with Article 33 of the Sixth Council Directive
77/388/EEC (1) of 17 May 1977 to maintain the variable or
proportional amount of the duty on documented legal transac-
tions when the latter is chargeable on the conclusion of a
purchase by an undertaking whose business activity consists of
buying and selling immovable property or purchasing immo-
vable property for development or letting, the chargeable event
or transaction, the basis of assessment and the taxable person in
respect of the duty on documented legal transactions being the
same as those in respect of value added tax, which is chargeable
simultaneously in respect of the same purchase?

(1) OJ L 145, p. 1; EE 09/01, p. 54.

1. Must Articles 49 EC and 56 EC be interpreted as meaning
that,
in cases where foreign savings balances, or income
therefrom, are not disclosed to the tax authorities of a
Member State, those articles do not prevent that Member
State from applying a statutory rule which,
in order to
compensate for the lack of effective means of monitoring
foreign credit balances, provides for a recovery period of
twelve years, whereas a recovery period of five years applies
in the case of savings balances, or income therefrom, held in
that Member State, in which such effective means do exist?

2. Does it make a difference to the answer to Question 1
whether the credit balances are held in a Member State in
which banking secrecy applies?

3. If the answer to Question 1 is affirmative, do Articles 49 EC
and 56 EC similarly not preclude a fine for failure to disclose
income or capital on which tax has been subsequently recov-
ered from being determined as a proportion of the amount
recovered over that longer period?