CELEX: C1997/166/36
Language: en
Date: 1997-05-31 00:00:00
Title: Action brought on 28 March 1997 by British Shoe Corporation and others against the Commission of the European Communities (Case T-73/97)

31 . 5 . 97          EN                   Official Journal of the European Communities                                         No C 166/ 17
     basing themselves on a subsequent certificate issued            be regarded as a 'like product' to injection-moulded
     by Dafse which requires the application of criteria             footwear. There are significant differences, notably in
     of accounting procedure and sound financial                     manufacturing materials, production processes, technical
     administration    which    were     not   made     known        and physical characteristics, price, packaging and
     beforehand, at the relevant time or afterwards,                 marketing. The Commission's decision to impose an
                                                                     antidumping duty 94,1 % on vulcanized footwear is
                                                                     therefore unlawful .
— the decisions breach the applicant's rights of defence .
                                                                     The applicants also plead infringement of Article 190 of
                                                                     the Treaty. They submit that the inadequate reasoning
                                                                     contained in Regulation ( EC ) No 165/97 prevents the
Action brought on 28 March 1997 by British Shoe                      Court of First Instance from discharging its duty to review
                                                                     the question whether the defendant has determined the
Corporation and others against the Commission of the
                   European Communities
                                                                     correct level of antidumping duty. The first objection to
                                                                     the Commission's approach is its failure to take into
                       ( Case T-73/97 )                              account the difference between vulcanized and injection­
                         97/C 166/36                                 moulded footwear. Furthermore, the arithmetical basis
                                                                     underlying the level of provisional duty is neither sound
                (Language of the case: English)                      nor adequately reasoned .
An action against the Commission of the European
Communities was brought before the Court of First                    They further submit that the Commission has committed a
Instance of the European Communities on 28 March 1997                manifest error of appraisal in its assessment of the
by British Shoe Corporation and others, represented by               ' Community interest'. The contested measure implies that
Alasdair Bell , Solicitor, Society of Scotland, and Mark             the distribution system can and will absorb much of the
Powell, Solicitor, England, with an address for service in           antidumping duty. However, the Commission adduces no
Luxembourg at the Chambers of Loesch & Wolter, 1 1 rue               evidence for this at all, other than identifying the level of
Goethe, Luxembourg.                                                  gross margin between import and resale as 100% . There
                                                                     is no consideration of the cost structure covered by this
                                                                     margin, the profit level in it, or the capacity of the
The applicant claims that the Court should:                          distribution system to absorb a significant part of the
                                                                     duty. As retail prices of imported footwear have already
— annul Commission Regulation ( EC ) No 165/97                       increased substantially, the Commission's assessment of
     imposing provisional anti-dumping duties on imports             the situation is contradicted by the facts .
     of textile upper footwear originating in the People's
     Republic of China and Indonesia,
                                                                     The applicants next claim that, in breach of Article 3 ( 1 )
— take such other steps as justice may require,                      of Regulation ( EC ) No 3283/94, read in conjunction with
                                                                     Article 5 (4 ) thereof, the Commission has, in the present
                                                                     case, ignored the fact that before it may lawfully impose
— order the Commission to pay the costs of the applicant             antidumping duties it must establish material injury in
     companies in the present proceedings.                           relation to a group of EU producers collectively
                                                                      representing 25 % of EU production of the like product.
Pleas in law and main arguments adduced in support:
The applicant companies in the present case are all major            They plead, finally, breach of the principle of
importers and retailers of footwear in the European                  proportionality as regards the level of antidumping duties
Union . They import substantial quantities of footwear                fixed in the contested Regulation. On this point they lay
from China and Indonesia, countries that have been the                particular stress on the fact that it is practically impossible
subject of an antidumping investigation resulted in the               to obtain supplies of vulcanized footwear in the
adoption of Commission Regulation ( EC ) No 165/97 ( ] ),             Community.
imposing provisional antidumping duties of 94,1 % and
 36,5 % respectively on textile footwear from China and               ( J ) Regulation ( EC ) No 165/97 of 28 January 1997 imposing a
Indonesia . It is that Regulation which the applicants seek                 provisional anti-dumping duty on imports of footwear which
to have annulled .                                                          textile uppers originating in the People's Republic of China
                                                                            and Indonesia ( OJ No L 29, 31 . 1 . 1997, p. 3 ).
                                                                      ( 2 ) Regulation ( EC ) No 3283/94 of 22 December 1994 on
The applicants plead infringements of Article 1 ( 4 ) of                    protection against dumped imports from countries not
 Regulation ( EC ) No 3283/94 ( 2 ) in that the Commission is               members of the European Community ( OT No L 349 , 31 . 12 .
 mistaken, both in fact and in law, in its treatment of the                 1994 , p. 1 ).
 issue of 'like product' within the meaning of that
 provision. According to them, vulcanized footwear cannot