Case T-139/14: Action brought on 19 February 2014 — PT Wilmar Bioenergi Indonesia and PT Wilmar Nabati Indonesia v Council
Date: 2014-02-19
Institutions: General Court
Subjects: Indonesia, anti-dumping duty, biofuel, costing, import (EU), originating product, vegetable oil








C_2014151EN.01002601.xml










19.5.2014   


EN


Official Journal of the European Union


C 151/26





Action brought on 19 February 2014 — PT Wilmar Bioenergi Indonesia and PT Wilmar Nabati Indonesia v Council
(Case T-139/14)
2014/C 151/34
Language of the case: English

Parties


Applicants: PT Wilmar Bioenergi Indonesia (Kodya Dumai, Indonesia); and PT Wilmar Nabati Indonesia (Medan, Indonesia) (represented by: P. Vander Schueren, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicants claim that the Court should:






—


Annul Council Implementing Regulation (EU) No 1194/2013 of 19 November 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of biodiesel originating in Argentina and Indonesia (OJ 2013 L 315, p. 2), insofar as it imposes an anti-dumping duty on the applicants; and










—


Order the defendant to pay the applicants’ costs.





Pleas in law and main arguments

In support of the action, the applicants rely on eleven pleas in law.






1.


First plea in law, alleging that the EU Institutions acted contrary to the basic Regulation (1) because costs were not calculated on the basis of the records kept by the producer-exporters for the product under investigation and producers under investigation.










2.


Second plea in law, alleging violation of the basic Regulation as the constructed normal value includes costs not associated with the production and sale of the product under consideration.










3.


Third plea in law, alleging that the EU Commission acted contrary to the basic Regulation by incorporating costs based on international reference prices rather than costs in the country of origin (Indonesia).










4.


Fourth plea in law, alleging violations of the basic Regulation resorting to the construction of normal value in the absence of a particular market situation for the product concerned.










5.


Fifth plea in law claiming the inapplicability of Article 2(5) of the basic Regulation for being incompatible with Article 2.2.2(1) of the WTO Anti-Dumping Agreement if Article 2(5) allowed an exception to the obligation to use the cost of production in the country of origin in the construction of normal value.










6.


Sixth plea in law, alleging that Council Regulation No 1194/2013 is tainted by a manifest error of assessment in law and in fact as the actual price paid by the biodiesel producers for crude palm oil (CPO) is not regulated by government such that the actual price paid can be rejected.










7.


Seventh plea in law, alleging that Council Regulation No 1194/2013 violates the basic Regulation in the absence of due allowance for differences affecting price comparability, no fair comparison was made between normal value and export price.










8.


Eighth plea in law, alleging manifest error of assessment in the application of the cost adjustment which used the wrong feedstock in the case of the applicants.










9.


Ninth plea in law, alleging that Council Regulation No 1194/2013 is tainted by a manifest error of assessment by adjusting the cost of CPO sourced from affiliated CPO producers for not being at arm's length without examination solely on the basis of the alleged impact of the export tax on CPO prices.










10.


Tenth plea in law, alleging that Council Regulation No 1194/2013 is based on a manifest error of assessment by (i) rejecting the use of the domestic profit margin of sales of products part of the same general category as biodiesel on the basis that these sales were not made in the ordinary course of trade (ii) assessing the reasonableness of a profit margin based on a long-term interest rather than at short-term or medium term interest rate on loans.










11.


Eleventh plea in law, alleging that Council Regulation No 1194/2013 is based on a manifest error of assessment by rejecting the determination of a reasonable profit margin based on the claim that the use of return on capital for this determination is irrelevant for trading companies because they are service businesses without significant capital investments which erroneously denies the need for trading companies to have working capital to exercise their trading activities.






(1)  Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51) referred to as ‘the basic Regulation’