CELEX: C1995/119/53
Language: en
Date: 1995-05-13 00:00:00
Title: Action brought on 6 March 1995 by NMB France Sàrl, NMB-Minebea-GmbH, NMB (UK) Ltd and NMB Italia Srl against the Commission of the European Communities (Case T-78/95)

13 . 5 . 95        [ EN                 Official Journal of the European Communities                                        No C 119/27
Action brought on 24 February 1995 by Estabelecimentos              Action brought on 3 March 1995 by Heinz-Josef Keimes
Isidoro M. Oliveira, SA, Sociedade Comercial, against the           against the Council of the European Union and the
          Commission of the European Communities                             Commission of the European Communities
                         Case T-73/95 )                                                      (Case T-76/95 )
                          95/C 119/51 )                                                        ( 95/C 119/52 )
                                                                                    (Language of the case: German)
             (Language of the case: Portuguese)
                                                                    An action against the Council of the European Union and
                                                                    the Commission of the European Communities was brought
An action against the Commission of the European                    before the Court of First Instance of the European
Communities was brought before the Court of First                   Communities on 3 March 1995 by Heinz-Josef Keimes,
Instance of the European Communities on 24 February                 Heinsberg-Dremmen ( Federal Republik of Germany),
 1995 by Estabelecimentos Isidoro M. Oliveira, SA,                  represented by Dr Lukanow, Rechtsanwalt, Euskirchen,
Sociedade Comercial, whose registered office is in Avenida          with an address for service in Luxembourg at the Chambers
de Olivença, Montijo, Portugal, represented by Dr Joaquim           of Dupong & Associés, 14a , Rue des Bains .
Marques de Ascensâo, of the Lisbon Bar, whose Chambers
are in Av. Eng. Duarte Pacheco — Amoreiras, Torre 2 ,               The applicant claims that the Court should :
 1 0-S 1,1000 Lisbon, with an address for service at the Uniâo
de Bancos Portugueses SA, c/o Sr Alberto de Sousa, 12, rue          order the defendants to pay to the applicant compensation
de la Grève, 1643 Luxembourg.                                       for the period of five milk years from 1 April 1988 in the
                                                                    amount of DM 58 937,01 , together with 8% interest
                                                                    thereon from 17 December 1983 .
The applicant claims that the Court should :
                                                                    Pleas in law and main arguments adduced in support:
annul in part the Decision of the Commission relating to file       The pleas in law and main arguments are similar to those in
No 870708/P1 , notified on 28 December 1994 .                       Case T-20/94 .
Pleas in law and main arguments adduced in support:
The applicant, a Portuguese commercial company, which
had organized and conducted, on the basis of a project              Action brought on 6 March 1995 by NMB France Sàrl,
                                                                    NMB-Minebea-GmbH, NMB (UK) Ltd and NMB Italia Sri
submitted in 1986 , a professional training programme,
                                                                       against the Commission of the European Communities
challenges the Commission's refusal to declare eligible for
the purposes of the European Social Fund certain                                             ( Case T-78/95 )
expenditure relating to that programme .                                                        95/C 119/53
It points out that, by Decision of 27 June 1989 , the                               (Language of the case: English)
defendant institution had already held to be ineligible part
of the amount designated for financing the programme and            An action against the Commission of the European
that that Decision was annulled by judgment of the Court of         Communities was brought before the Court of First
Justice of 7 May 1991 in Case C-304/89 .                            Instance of the European Communities on 6 March 1 995 by
                                                                   NMB France Sàrl, NMB-Minebea-GmbH, NMB (UK) Ltd
                                                                    and NMB Italia Sri, represented by Ian S. Forrester and
However, eight years after the submission of the project,          Aristotelis Kaplanidis, with an address for service in
seven years after the execution of the training programme          Luxembourg at the Chambers of Maître Marc Loesch,
and four years after the judgment of the Court of Justice           8 Rue Goethe, 1011 Luxembourg.
annulling the Commission's Decision of 27 June 1989, the
Commission has now adopted a new Decision, even more
severe for the financial point of view, than that annulled by      The appliclants claim that the Court should:
the Court of Justice.                                               1 , annul Commission Decision 94/95 1 /EC in so far as it
                                                                         denies to the applicants partial refunds of anti-dumping
In so doing, the defendant has infringed the principle which             duties collected in 1992 on imports of ball bearings from
prohibits a reformatio in peius. Similarly, it has infringed the         Thailand, on the basis that the said anti-dumping duties
principles of legal certainty and the protection of legitimate           should be treated as a cost to be deducted in determining
expectation, and also the criterion of a 'reasonable                     export price, declaring Article 2 ( 8 ) ( b ) (ii ) of Regulation
period'.                                                                 (EEC ) No 2423/88 inapplicable under Article 184 of the
                                                                         EC Treaty to the extent necessary for the purpose;
                                                                   2 , take such further or other steps as justice may
                                                                         require;
 ---pagebreak--- No C 119/28           IENI                  Official Journal of the European Communities                                   13 . 5 . 95
3 , order the Commission to pay the applicants' costs in the           Action brought on 7 March 1995 by Société Nationale des
      present proceedings.                                             Chemins de Fer Français (SNCF) against the Commission of
                                                                                        the European Communities
                                                                                              <Case T-79/95 )
Pleas in law and main arguments adduced in support:                                            ( 95/C 119/54 )
The applicants contend that it is improper and illegal for the                        (Language of the case: Frertch)
Commission, in determining whether or not to grant
requests for refunds of anti-dumping duties by importers
associated with exporters, to include the anti-dumping duty            An action against the Commission of the European
whose refund is sought in the costs deducted from the resale           Communities was brought before the Court of First
price for the purpose of arriving at a reconstructed export            Instance of the European Communities on 7 March 1995 by
price, for the following reasons:                                      Société Nationale des Chemins de Fer Français ( SNCF), a
                                                                       French public undertaking whose registered office is in
                                                                       Paris ( France ), represented by Barbara Rapp-Jung,
(a ) Applying this rule is illegal because it leads to the             Rechtsanwàltin, Frankfurt am Main, and Nathalie Flandin,
       finding of a dumping margin where in reality none               of the Brussels Bar, with an address for service in
       exists, or to the finding of a higher margin than that          Luxembourg at the Chambers of Victor Elvinger, 31 Rue
       which exists, with the result that refunds of those duties      d'Eich.
       which should be granted are not granted, or are granted
       in an amount less than that which should be
       granted.                                                        The applicant claims that the Court should:
                                                                       1 , annul the Commission Decision of 13 December 1994
(b ) This infringes the principles of proportionality, in that
       it imposes an excessive burden on th importers by                   relating to a proceeding under Article 85 of the EC
       causing them to bear the anti-dumping duty in an                    Treaty and Article 53 of the EEA Agreement ( IV/32.490
       amount which is greater than what is necessary to fulfil            — Eurotunnel );
       the legitimate objective of eliminating dumping with
       respect to the imports in question.                             2, in the alternative, annul the Decision in so far as
                                                                           conditions are attached to it (Article 2 A);
(c) It brings about discrimination between associated and
       independent importers.                                          3 , order the defendant to pay' the costs .
( d ) Application of the rule constitutes a breach of the              Pleas in law and main arguments adduced in support:
       EC's obligations under the GATT and the GATT
       anti-dumping code to levy anti-dumping duties only in           The applicant states that on 29 July 1987 a usage contract
       the amount necessary to offset or prevent dumping and           for the use of the fixed link (the Tunnel) between the United
       to refund duties paid on a given importation if the             Kingdom and France was concluded by the concessionaires
       amount of such duties exceeds the amount of the                 for the Tunnel ( France Manche SA and Channel Tunnel
       dumping for such importation.                                   Group Ltd ) of the first part and Société Nationale des
                                                                       Chemins de Fer Français and British Railways Board (BR) of
                                                                       the second part; the subject-matter of the contract consists
(e) The Commission's implementation from 1 January                     essentially of an agreement between the concessionaires and
       1995 of a different rule whereby full refunds are               SNCF and BR on the allocation of paths to SNCF and BR.
       granted to related importers upon the making of a               The contract was notified to the Commission in order to
       'single jump' demonstrates that the insurmountability           obtain a declaration of non-applicability of the prohibition
       of the obstacles invoked by the Commission to justify           in Article 2 of Council Regulation (EEC) No 1017/68 . The
       its previous policy was unfounded.                              Commission decided to exempt the contract for a period of
                                                                       30 years; it attached to the exemption, however, conditions
                                                                       to be borne by SNCF and BR alone and obligations for all
The applicants maintain that the provisions of Article 2(8 )           the parties to the contract.
( b) of Regulation (EEC ) No 2423/88 are inapplicable under
Article 184 of the Treaty in so far as they require                    The applicant challenges the Decision, raising the following
anti-dumping duties paid to be included in the costs                   pleas in law:
deducted from the resale price to customers for the purpose
of calculating export price. They therefore ask the Court to
annul the contested Decision in so far as it denied refunds as          I. Breach of essential procedural requirements
a result of applying such provisions.
                                                                            1 . Infringement of the regulations applying the
                                                                                competition rules: the applicant considers that,
                                                                                contrary to the Commission's view, Regulation
                                                                                No 17 is not applicable to the usage contract.