CELEX: C2003/264/54
Language: en
Date: 2003-11-01 00:00:00
Title: Case T-278/03: Action brought on 8 August 2003 by Van Mannekus & Co. B.V. against the Council of the European Union

1.11.2003             EN                          Official Journal of the European Union                                           C 264/31
The applicant claims that the Court should:                               Action brought on 8 August 2003 by Van Mannekus &
                                                                              Co. B.V. against the Council of the European Union
—     Annul or vary Commission Decision E(2003)738 Final                                           (Case T-278/03)
      of 25 March 2003 concerning recovery of amounts
      unduly paid to Dionisia Vlakhaki, formerly an auxiliary
                                                                                                   (2003/C 264/54)
      agent, so as to remove from it Article 1(b) thereof and
      not to require her to pay to the defendant any of the
      amounts mentioned therein in addition to the principal                                 (Language of the case: German)
      sum claimed by the defendant and, specifically, not to
      require payment of interest on late payment together
      with additional amounts calculated up to 23 July 2003
      in the amount of two thousand eight hundred and forty-              An action against the Council of the European Union was
      seven euros and 32 cents (EUR 2 847,32) which is broken             brought before the Court of First Instance of the European
      down in accordance with Article 1 of the contested                  Communities on 8 August 2003 by Van Mannekus & Co. B.V.,
      decision into one thousand three hundred and forty-four             Schiedam (Netherlands), represented by H. Bleier, lawyer.
      cents (EUR 1 344,04) for the period until 10 April 2001,
      one thousand and twenty-three euros and eighty-eight
      cents (EUR 1 023,88) for the period from 11 April 2001              The applicant claims that the Court should:
      until 31 December 2002 and four hundred and seventy-
      nine euros and 40 cents (EUR 479,40) for the period                 —     annul Council Regulation (EC) No 985/2003 of 5 June
      from 1 January 2003 to 23 July 2003 (204 days at                          2003 amending the antidumping duty measures imposed
      EUR 2,35 per day = EUR 479,40).                                           by Council Regulation (EC) No 1334/1999 on imports of
                                                                                magnesium oxide originating in the People’s Republic of
                                                                                China (1);
—     In the alternative, annul or vary contested Decision
      E(2003)738 Final of 25 March 2003.                                  —     order the Council of the European Union to pay all the
                                                                                costs.
—     Order the defendant to pay the applicant’s costs.
                                                                          Pleas in law and main arguments
                                                                          By the contested regulation the Council altered the nature of
                                                                          the antidumping duties on imports of magnesium oxide
                                                                          originating in the People’s Republic of China on the basis of a
                                                                          partial interim review. The applicant participated in the review
Pleas in law and main arguments
                                                                          procedure which preceded the contested regulation as an
                                                                          importer. It claims that the regulation infringes substantive
                                                                          Community law in that Council Regulation (EC) No 384/96 (2)
                                                                          was misapplied to a significant degree.
By the contested decision the applicant was required to repay
to the defendant EUR 13 182,18 by way of principal sum in                 The applicant argues that it was a misuse of discretion to
respect of amounts unduly paid to her after the expiry of her             initiate a partial interim review ex officio at all. The grounds
contract with the Commission, together with interest in respect           set out in the Commission’s notice do not in any event justify
of late payment. The action is directed against the part of the           a review. The Commission claimed that the fact that there was
contested decision concerning payment of interest in respect              no differentiation between sales made to related parties and
of late payment. The applicant maintains that she was wrongly             sales made to unrelated parties and between direct and indirect
required to pay interest since her inability to repay the principal       sales could ‘lead to difficulties in applying the legal provisions’.
sum due is attributable to her severe financial problems and              That is not true however. There could be no more difficulty in
her family’s health problems which constitute grounds of force            applying the legal provision.
majeure. Furthermore, she also alleges that she was not invited
to put forward her views before the contested decision was
adopted. Finally, she maintains that, in any event, she cannot            Further the statement of reasons given in the contested
be required to pay interest in respect of the period up to                regulation is different from that which had been set out in the
10 April 2001 because the Commission had tacitly waived its               notice relating to the initiation of the partial interim review.
claim to interest in respect of that period.                              That means that there was either a lack of formal reasons or a
                                                                          lack of sufficient grounds for altering the type of duty
                                                                          substantively. It was a misuse of discretion to differentiate in
                                                                          the contested regulation between trade with related parties and
                                                                          trade with unrelated parties and between direct and indirect
                                                                          sales in the Community.
 ---pagebreak--- C 264/32                EN                          Official Journal of the European Union                                          1.11.2003
The applicant further claims that the contested regulation                  Pleas in law and main arguments
infringes Regulation (EC) No 384/96 because the partial
interim review does not justify altering the amount of duty.
According to the notice the review should be confined to the
nature of the applicable measure but it went further than that.             The applicant provides private medical insurance in Ireland. In
In addition the amount of the duty was set entirely arbitrarily.            the contested decision, the Commission decided not to raise
Regulation (EC) No 384/96 does not provide for the possibility              any objections to the risk equalisation scheme to be
of using the results of reviews that are over 12 years old. It              implemented by the Irish authorities in the Irish market for
does not allow the results of reviews that are older than five              private medical insurance. According to the applicant, the
years to be used.                                                           effect of this scheme is to grant a subsidy to the dominant
                                                                            provider of medical insurance, the Voluntary Health Insurance
                                                                            Board; the subsidy would be funded by a charge to be imposed
Finally no specific dumping margin was laid down in the final               on the applicant.
review and it is impossible to see how a duty of 27,1 % could
be arrived at based on that review.
                                                                            In support of its application, the applicant invokes, firstly, the
(1) OJ L 143, p. 1.
                                                                            misapplication by the Commission of Article 87(1) EC. The
(2) Council Regulation (EC) No 384/96 of 22 December 1995 on                applicant submits that the Commission considered that the
    protection against dumped imports from countries not members            risk equalisation scheme did, in principle, satisfy the conditions
    of the European Community (OJ L 56, p. 1), most recently                for aid under Article 87(1) EC. However, it decided that the
    amended by Regulation (EC) No 1972/2002 (OJ L 305, p. 1).               scheme compensated the Voluntary Health Insurance Board
                                                                            for public service obligations.
                                                                            According to the applicant, the Commission misapplied the
                                                                            public service compensation test as set out in the jurisprudence
                                                                            of the Court of Justice (1). The applicant states that the
                                                                            obligations identified by the Commission were the require-
                                                                            ments for private medical insurers in Ireland to follow the
Action brought on 19 August 2003 by British United
                                                                            principles of open enrolment, community rating, minimum
Provident Association Limited, BUPA Insurance Limited
                                                                            benefits and lifetime cover. These are, according to the
and BUPA Ireland Limited against Commission of the
                                                                            applicant, not to be considered as public service obligations or
                     European Communities
                                                                            obligations following the operation of services of general
                                                                            economic interest. These obligations would rather represent
                         (Case T-289/03)                                    general regulation of the private medical insurance market,
                                                                            applicable to all insurers. The applicant furthermore submits
                                                                            that the Commission did not consider whether these obli-
                         (2003/C 264/55)                                    gations imposed a financial burden on the Voluntary Health
                                                                            Insurance Board.
                    (Language of the case: English)
                                                                            The applicant states that the Commission’s alternative basis
                                                                            for the contested decision was that the risk equalisation scheme
                                                                            could be approved under Article 86(2) EC. The applicant
An action against the Commission of the European Communi-                   submits that the Commission failed to ensure that the con-
ties was brought before the Court of First Instance of the                  ditions for approval under that article were satisfied. According
European Communities on 19 August 2003 by British United                    to the applicant, the relevant private medical insurance obli-
Provident Association Limited, London, (United Kingdom) and                 gations were not services of general economic interest. The
BUPA Insurance Limited, London, (United Kingdom) and                        applicant furthermore submits that the Commission’s argu-
BUPA Ireland Limited , Dublin, (Ireland), all represented by                ments on necessity and proportionality were based on both
Mr N. Green QC, Mr K. Bacon Barrister, Mr B. Amory, lawyer                  errors of reasoning and manifest errors of fact. The applicant
and Mr J. Burke, Barrister.                                                 also claims that the Commission did not consider whether the
                                                                            scheme would affect the development of trade contrary to the
                                                                            interests of the Community.
The applicant claims that the Court should:
—     annul the Commission decision C(2003)1322 fin of                      The applicant also submits that the Commission erred in
      13 May 2003;                                                          failing to consider whether the risk equalisation scheme
                                                                            infringed Article 82 EC taken together with Article 86(1) EC,
—     order that the Commission pays the applicant’s costs.                 Articles 43 and 49 EC and Council Directive 92/49/EEC (2).