CELEX: C1995/119/54
Language: en
Date: 1995-05-13 00:00:00
Title: Action brought on 7 March 1995 by Société Nationale des Chemins de Fer Français (SNCF) against the Commission of the European Communities (Case T-79/95)

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.
 ---pagebreak--- 13 . 5 . 95           | EN                  Official Journal of the European Communities                                 No C 119/29
     2 . Infringement of the rights of the defence: the                         ( f) the Decision does not comply with the
          applicant submits that the Commission failed to                             legislative framework ensuring the economic
          respect its right of access to the file, its right to a                     viability of trans-European networks;
          hearing and its right to the observance of time
          limits .                                                              (g) the Decision takes no account of the objective
                                                                                      necessity of technical cooperation.
     3 . Breach of the principles of the proper                             3 . Misuse of power: the applicant argues that the
          administration of the competition rules: the                          Commission may, on the basis of Article 8 of
          applicant considers that by attaching to its decision                 Regulation No 17 and Article 13 of Regulation
          to grant exemption conditions which disregard                         (EEC )    No      1017/68 ,  attach  conditions    and
          freedom of contract and seriously harm the                            obligations to a decision to grant exemption, but
          economic balance of the contract, the Commission                      that its power in this field is discretionary, not
          failed to respect the principle of minimum                            unlimited . It considers that the Commission exceeds
          intervention . It also submits that the Commission
                                                                                its powers if it upsets the economic balance of a
          was wrong to give retroactive effect to the                           contract and the market conditions within which it
          conditions of the exemption; such retroactive effects                 is to be applied so substantially that a well-informed
          conflict with the Community provisions according                      trader would not have concluded it in that way of his
          to which an exemption can be revoked only in                          own volition. That is the case with the usage
          clearly defined circumstances, circumstances which                    contract .
          are not present in this case .
                                                                            4. Breach of Article 190 of the EC Treaty: the applicant
II. Breach of substantive provisions of Community law                           submits that the Decision does not comply with the
                                                                                requirements of the case-law with respect to
                                                                                statements of reasons for decisions having adverse
     1 . Breach of the principle of protection of legitimate                    effect.
          expectations: the applicant submits that traders are
          entitled to require the public authorities to take
          account of the good faith in which they took
          decisions in the previous legal context which
          continue to have effect in a new legal context; those
          decisions     are   entitled  to   some     transitional
                                                                       Action brought on 8 March 1995 by British Railways Board
          protection, the nature and duration of which must               against the Commission of the European Communities
          take account of the actual possibilities for the
          traders concerned to adapt their decisions to the                                      (Case T-80/95 )
          new legal context. That was not done by the                                             ( 95/C 119/55 )
          Commission in the present case.
                                                                                       (Language of the case: English)
     2. The contested Decision was adopted in breach of
          Article 85 ( 1 ) of the EC Treaty, Article 2 of              An action against the Commission of the European
          Regulation ( EEC ) No 1017/68 and Article 53 ( 1 ) of        Communities was brought before the Court of First
          the EEA Agreement, for the following reasons:                Instance of the European Communities on 8 March 1995 by
                                                                       British Railways Board, represented by Mr Thomas Sharpe
          (a ) the Decisions contains a delimitation of the            and Mr Alexandre R. M. Nourry, with an address for service
                reference markets which is incorrect in fact and       in Luxembourg at the Chambers of Maître Jean Hoss,
                law;                                                   Elvinger & Hoss, Avocats à la Cour, 15 Côte d'Eich, BP 425 ,
                                                                       1450 Luxembourg.
          ( b ) the object of the usage contract is not a sharing      The applicant claims that the Court should:
                of markets within the meaning of Article 85 ( 1 )
                of the EC Treaty, Article 2 of Regulation ( EEC )      — annul Commission Decision 94/894/EC of 13 December
                No 1017/68 and Article 53 ( 1 ) of the EEA                  1994 (*) in its entirety, or
                Agreement;
                                                                       — alternatively, annul Article 2 .A of the Decision, and
          (c) the effect of the contract is not a sharing
                of markets within the meaning of those                 — order the Commission to pay the applicant's costs .
                provisions;
                                                                       Pleas in law and main arguments adduced in support:
          ( d ) the Decision takes no account of the weight of
                intermodal competition;                                The applicant challenges the legality of the Decision on the
                                                                       following grounds:
          (e ) the Decision takes no account of the contract's         1 . The Decision is based on an incorrect and incomplete
                pro-competitive object and effects;                         assessment of the facts and vitiated by manifest error in