CELEX: C1997/166/38
Language: en
Date: 1997-05-31 00:00:00
Title: Action brought on 28 March 1997 by Büchel & Co. Fahrzeugteilefabrik GmbH against the Commission of the European Communities (Case T-75/97)

No C 166/18           EN                 Official Journal of the European Communities                                  31 . 5 . 97
Action brought on 28 March 1997 by Biichel &C Co.                   The Reference Regulation makes provision for the
Fahrzeugteilefabrik GmbH against the Council of the                 Commission to grant exemptions to assemblers who do
                       European Union                               not satisfy the factual preconditions for circumvention .
                        ( Case T-74/97 )                            Pure importers of bicycle parts, on the other hand, are
                                                                    subject to the end-use procedure before the national
                          97/C 166/37
                                                                    customs authorities, introduced by the Reference
               (Language of the case: German)                       Regulation . That procedure makes the exemption under
                                                                    the Basic Regulation for undertakings which do not satisfy
                                                                    the factual preconditions for circumvention subject to
An action against the Council of the European Union was             further conditions, which were not provided for by the
brought before the Court of First Instance of the European          Basic Regulation and were therefore adopted without legal
Communities on 28 March 1997 by Biichel & Co. Fahr­                 basis . Those further conditions lead, moreover, to a
zeugteilefabrik GmbH, Fulda ( Federal Republic of                   restriction on the free movement of goods in the
Germany ), represented by Wolfgang A. Rehmann, Rechts­              Community and will therefore offend against the principle
anwalt, and Ute Zinsmeister, Rechtsanwaltin, Brussels,              of the free movement of goods . In addition, the end-use
with an address for service in Luxembourg at the                    procedure results in breach of the right to property and,
Chambers of Bonn & Schmitt, 62 Avenue Guillaume .                   because of the different treatment of assemblers and
                                                                    importers, offends against the principle of equal treatment.
The applicant claims that the Court should:
— annul Council Regulation ( EC ) No 71 /97,                        The applicant contends in an ancillary claim that
                                                                    Article 13 of the Basic Regulation, which constitutes the
— declare, pursuant to Article 184 of the EC Treaty, that           legal basis for the Reference Regulation, is inconsistent
     Article 13 of Council Regulation ( EC ) No 384/96 is           with Article VI of the GATT and the Agreement on
     inapplicable in so far as it constitutes the legal basis       Implementation of Article VI, since it allows duty to be
     for Regulation No 71 /97,                                      imposed in the case of circumvention without injury to the
                                                                    Community industry having to be proved . It contends
— order the defendant to pay the costs.                             additionally that Article VI of the GATT is infringed on
                                                                    the basis that, according to Article 13 of the Basic
                                                                    Regulation, duty can be imposed in the case of
Pleas in law and main arguments adduced in support:                 circumvention even if the goods are assembled or
                                                                    produced by a person who is not connected with an
The applicant produces mainly bicycle parts and trades               importer or producer whose exports of like products are
additionally in individual bicycle parts ( not produced in          subject to the definitive anti-dumping duty.
kits ), which are imported, inter alia, from the People's
Republic of China .
In this action, the applicant challenges Council Regulation
( EC ) No 71/97 (the 'Reference Regulation'), by which the
duty originally introduced for bicycles originating in the
People's Republic of China was extended to the import of             Action brought on 28 March 1997 by Biichel & Co. Fahr­
bicycle parts originating in that country. Although the              zeugteilefabrik GmbH against the Commission of the
applicant does not satisfy the factual preconditions for                               European Communities
circumvention, it was not granted exemption from the                                         Case T-75 /97 )
duty applicable in the case of circumvention.
                                                                                             97/C 166/38
The applicant contends that the Reference Regulation
should be annulled and relies thereby essentially on the                           (Language of the case: German)
 following grounds .
While the Commission investigation which led to adoption             An action against the Commission of the European
 of the Reference Regulation related solely to the import of         Communities was brought before the Court of First
 complete, pre-assembled bicycle parts ( assemblies), the            Instance of the European Communities on 28 March 1997
 duty applicable in the case of circumvention was imposed            by Biichel & Co . Fahrzeugteilefabrik GmbH, Fulda
 not only on the relevant assemblies but also on individual           (Federal Republic of Germany ), represented by Wolfgang
 bicycle parts, irrespective of whether or not they were             A. Rehmann, Rechtsanwalt, and Ute Zinsmeister,
 placed in kits . Such extension of the measures is not              Rechtsanwaltin, Brussels, with an address for service in
 covered by Article 13 of Regulation ( EC ) No 384/96 (the            Luxembourg at the Chambers of Bonn 8c Schmitt, 62
 'Basic Regulation ').                                               Avenue Guillaume .
 The extension of the anti-dumping duty to individual
 bicycle parts also offends against the principle of                  The applicant claims that the Court should :
 proportionality, since the measure chosen is not
 appropriate for achievement of the objective in view and
 is not the least onerous means .                                     — annul Commission Regulation ( EC ) No 88/97,
 ---pagebreak--- 31 . 5 . 97          EN                  Official Journal of the European Communities                              No C 166/ 19
— declare, pursuant to Article 184 of the EC Treaty, that            Instance of the European Communities on 27 March 1997
     Council Regulation ( EC ) No 71/97 is inapplicable in           by Sofivo, established at Conde sur Vire ( France ), Sofivo
     so far as it constitutes the legal basis for Regulation        Production, established at Brece ( France ), Sovinor,
     No 88/97,                                                      established at Conde sur Vire ( France ), Denkavit France,
                                                                    established at Montreuil-Bellay ( France ), Sobeval Viande,
— declare, pursuant to Article 184 of the EC Treaty, that           established at Perigueux ( France ), Serval, established at
     Article 13 of Council Regulation ( EC ) No 384/96 is           Sainte Eanne ( France ), Besnier Industrie, established at
     inapplicable in so far as it constitutes the legal basis       Bourgbarre ( France ), Sovida, established at Chateaubriand
     for Regulations ( EC ) No 71/97 and (EC ) No 88/97,             ( France ), Sica Ouest Elevage, established at Ploudaniel
                                                                    ( France ), Guinde, established at Montauban de Bretagne
— order the defendant to pay the costs .                            ( France ), Tarbouriech, established at Villeneuve sur Lot
                                                                    ( France ), Mamellor, established at Charnay les Macon
Pleas in law and main arguments adduced in support:                 ( France ), Coopagri Bretagne, established at Landerneau
                                                                    ( France ), Collet et Compagnie, established at
The applicant has already, with Case T-74/97, brought an            Chateaubourg ( France ), Kermene SA, established at Saint
action against the Council before the Court of First                Jacut du Mene ( France ), and Vals, established at
Instance of the European Communities .                              Champagne ( France ), represented by Philippe Denesle, of
                                                                    the Rouen Bar, with an address for service in Luxembourg
In the present action, the applicant challenges Commission          at the Chambers of Marc Loesch, 11 Rue Goethe .
Regulation (EC ) No 88/97 ( the 'Exemption Regulation'),
which lays down the detailed rules for the procedure for            The applicants claim that the Court should:
the exemption of undertakings provided for by Council
Regulation ( EC ) No 71 /97 (the 'Reference Regulation').           — annul Commission Regulation ( EC ) No 200/97
The Reference Regulation extended the duty originally                     adopted on 31 January 1997,
introduced for bicycles originating in the People's
Republic of China to the import of bicycle parts                    — order the Commission to pay the costs .
originating in that country. Although the applicant does
not satisfy the factual preconditions for circumvention, it         Pleas in law and main arguments adduced in support:
was not granted exemption from the duty applicable in
the case of circumvention .                                         The applicants, who are also the applicants in Cases T-14/
                                                                    97, T-15/97, T-20/97 (^ and T-61/97 ( 2), are contesting the
The applicant contends that the Exemption Regulation                way in which, by establishing a supplementary early
should be annulled and relies thereby essentially on the            marketing premium in the beef and veal sector, Regulation
following grounds .                                                 ( EC ) No 200/97 ( 3 ) purports to tackle the unequal
                                                                    treatment and anti-competitive discrimination criticized in
The end-use system before the national customs                      the applications lodged in the cases cited above .
authorities introduced for importers by the Exemption
Regulation, which does not grant undertakings an                    According to the applicants, the Commission has adopted,
exemption automatically if they do not satisfy the factual          in the contested measure, the principle of the payment of
preconditions for circumvention but makes exemption                 a supplementary premium, which, although introducing a
dependent on further conditions, is not covered by                  differentiation as regards the amount of the aid,
Article 3 of the Reference Regulation and Article 13 of             nevertheless fails to remedy the unequal treatment and
Regulation ( EC ) No 384/96 ( the 'Basic Regulation') and           anti-competitive discrimination in any way. In their view,
therefore lacks a legal basis .                                     the grant of a supplementary premium in the same
                                                                    amount, the sole consideration for which is the weight of
In addition, the applicant pleads in an ancillary claim the         the slaughtered animal, without taking into account any
inapplicability of the Reference Regulation and Article 13          other objective market factor, cannot restore a balance
of the Basic Regulation in so far as they constitute the            between competing products .
legal basis for the Exemption Regulation. The applicant
relies in that regard essentially on the arguments already          The applicants have stated in their previous applications
made in Case T-74/97 .                                              that, since the average carcase weight qualifying for the
                                                                    premium may vary from one Member State to the next,
                                                                    without such variation being justified by objective,
                                                                    relevant divergences, the provisions in issue did not
                                                                    comply with Article 40 of the Treaty. In the contested act,
                                                                    however, the Commission once again adopts reference
Action brought on 27 March 1997 by Sofivo and Others                weights without providing any objective data .
   against the Commission of the European Communities
                        (Case T-76/97 )                             In addition, however, and as their main point, the
                         ( 97/C 166/39 )                            applicants state that, whilst the Commission is right in its
                                                                    view that production no longer meets normal demand in
               (Language of the case: French)                       the market, the provisions adopted by it cannot remedy
                                                                    the effect under consideration . The supplementary
An action against the Commission of the European                    premium of ECU 10 per 108 kilograms in respect of
Communities was brought before the Court of First                   animals reared in France does not in any way permit the