CELEX: C2002/289/51
Language: en
Date: 2002-11-23 00:00:00
Title: Case T-274/02: Action brought on 6 September 2002 by Ritek Corporation and Prodisc Technology Inc. against the Council of the European Union

23.11.2002              EN                       Official Journal of the European Communities                                     C 289/27
The applicant furthermore invokes a violation of its right to a             —     order that the costs of and occasioned by these proceed-
fair trial. According to the applicant, there was no fair and                     ings be borne by the defendant.
independent hearing in the matter. The applicant also invokes
a violation of the right of access to documents. In addition, the
Commission violated the principle of good administration by
not dealing with the matter within a reasonable time limit.
                                                                            Pleas in law and main arguments
Finally, the applicant submits that the Commission has misused
its powers by implementing Article 24 of Regulation (EEC)
4253/88 (1). According to the applicant, Article 24 should
only be used in the event of impropriety. In the present case,
the Commission should have applied Article 23 of the                        The applicants are producers of CD-Rs established in Taiwan
regulation to recover the money overpaid as a result of                     and export CD-Rs to the Community. In February 2001, an
mistakes.                                                                   anti-dumping complaint was lodged before the Commission
                                                                            by the Committee of European CD-R Manufacturers. Following
                                                                            this complaint, the Commission initiated an investigation
( 1) Regulation (EEC) No 4253/88 of 19 December 1988, laying down           regarding imports originating in Taiwan. Provisional anti-
     provisions for implementing Regulation (EEC) No 2052/88 as             dumping measures were imposed by Commission Regulation
     regards coordination of the activities of the different Structural     2479/2001 (1). These measures were made definitive by
     Funds between themselves and with the operations of the                Council Regulation 1050/2002 (2). The applicants contest the
     European Investment Bank and the other existing financial              latter regulation with their present action.
     instruments (OJ 1988 L 374, p. 1).
                                                                            The applicants allege infringement of Articles 2(10) and 2(11)
                                                                            of Regulation 384/96 on protection against dumped imports
                                                                            from countries not members of the European Community (3).
                                                                            According to the applicants, the Council committed a manifest
                                                                            error in the assessment of the facts and of law by finding that
                                                                            the applicants engaged in ‘targeted dumping’ practices and
Action brought on 6 September 2002 by Ritek Corpor-                         allowed use of the average-to-transaction methodology in the
ation and Prodisc Technology Inc. against the Council of                    calculation of the dumping margin of the applicants.
                       the European Union
                          (Case T-274/02)
                                                                            According to the applicants, no exceptional treatment of
                                                                            certain transactions to certain customers, in certain regions or
                         (2002/C 289/51)                                    in certain time periods, i.e. no targeted dumping, took place
                                                                            during the investigation period. The applicants submit that
                                                                            export and domestic price patterns were almost identical and
                    (Language of the case: English)                         that the prices for CD-Rs declined worldwide. In these
                                                                            circumstances, there was, according to the applicants, no
                                                                            place for disguising the effects of dumping through targeted
                                                                            dumping.
An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 6 September 2002 by Ritek Corporation,
Hsin Chu Industrial Park, Taiwan R.O.C. and Prodisc Tech-                   The applicants furthermore claim that by using the average-to-
nology Inc., Taipei Hsien, Taiwan R.O.C, represented by Dr                  transaction methodology which refers to constructed normal
Konstantinos Adamantopoulos, Barrister, with an address for                 values, the Commission failed to address the purpose of
service in Luxembourg.                                                      targeted dumping, which is to conceal dumping by charging
                                                                            different export prices. According to the applicants, the
                                                                            Commission should refer to actual prices when investigating
The applicant claims that the Court should:                                 targeted dumping.
—      declare, pursuant to Article 230 and 231 of the Treaty,
       that Council Regulation (EC) 1050/2002 of 13 June 2002
       imposing a definitive anti-dumping duty and collecting               Secondly, the applicants allege infringement of Article 2 of
       definitively the provisional duty imposed on imports of              Regulation 384/96. The applicant claims that the Council
       recordable compact disks originating in Taiwan is null ad            made a manifest error of assessment of the facts in calculating
       void;                                                                the dumping margin of the applicants by using the ‘zeroing
 ---pagebreak--- C 289/28                 EN                      Official Journal of the European Communities                                   23.11.2002
technique’. Using this technique, the transactions of the                   Pleas in law and main arguments
applicants that are made at a price higher then the average
price, are brought down to a price equal to the average price.
According to the applicants, the Commission did not apply                   The applicant is an association bringing together more than
the average-to-transaction methodology correctly as a result                230 multinational companies, who together have invested
of using the ‘zeroing technique’. The applicants submit that                hundreds of millions of euros in the establishment of coordi-
the objective of the average-to-transaction methodology is to               nation centres in Belgium, based on legislation dating from the
ensure a fair comparison and not to yield higher dumping                    early 1980s permitting the establishment of coordination
margins.                                                                    centres for multinational companies. It explains that this
                                                                            legislation was found by the Commission on two separate
                                                                            occasions in 1984 and 1987 to fall outside Community rules
                                                                            on state aids and that, encouraged by these findings, the
( 1) Commission Regulation (EC) No 2479/2001 of 17 December
                                                                            coordination centres invested in Belgium and have, over the
     2001 imposing a provisional anti-dumping duty on imports of
     recordable compact disks originating in Taiwan (OJ L 334, p. 8).
                                                                            last 15 years, significantly expanded their presence there.
( 2) Council Regulation (EC) No 1050/2002 of 13 June 2002 imposing
     a definitive anti-dumping duty and collecting definitively the
     provisional duty imposed on imports of recordable compact disks        The applicant states that the Commission’s decision to initiate
     originating in Taiwan (OJ L 160, p. 2).                                the procedure laid down in Article 88(2) EC in respect of this
( 3) Council Regulation (EC) No 384/96 of 22 December 1995 on               Belgian legislation (the contested decision) abruptly, arbitrarily
     protection against dumped imports from countries not members           and without any adequate reasoning re-classifies it as an aid
     of the European Community (OJ 1996, L 56, p. 1).                       within the meaning of Article 87(1) and reaches preliminary
                                                                            negative conclusions as to its compatibility with the common
                                                                            market, thereby ‘at a stroke’ removing legal certainty and
                                                                            infringing the legitimate expectations of the Belgian Coordi-
                                                                            nation Centres.
                                                                            The applicant submits that the Commission’s decision is
                                                                            unlawful, being in breach of Article 1(b)(v) of Regulation 659/
                                                                            1999, and has no other basis in Community law. The
                                                                            Commission’s alternative legal basis for its decision to the
Action brought on 12 September 2002 by Forum 187 asbl                       effect that it is entitled to reverse a decision taken 15 years
   against the Commission of the European Communities                       earlier (either under Article 1(b)(v) or under general adminis-
                                                                            trative principles) is likewise unfounded in Community law
                                                                            and should be annulled. In particular, this alternative legal
                          (Case T-276/02)                                   basis for the Commission decision infringes the principles of
                                                                            legal certainty and legitimate expectations. The applicant
                                                                            considers therefore that, especially taking into account the
                          (2002/C 289/52)                                   novel legal basis upon which the decision purports to be taken
                                                                            and the substantial economic interests involved, the decision
                                                                            is inadequately reasoned, in breach of Article 253, and should
                     (Language of the case: English)                        be annulled.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 12 September 2002 by Forum 187
asbl, Brussels, Belgium, represented by Mr Alastair Sutton,                 Action brought on 10 September 2002 by Dyson Limited
barrister and Mr James Killick, barrister.                                  against the Office for the Harmonisation in the Internal
                                                                                                          Market
The applicant claims that the Court should:                                                          (Case T-278/02)
—      Annul the Commission’s Notice of its decision to initiate                                     (2002/C 289/53)
       the procedure laid down in Article 88 (2) of the EC Treaty
       published in the OJ C 147, p. 2 on 20 June 2002.                                        (Language of the case: English)
—      Order the Commission to pay the costs.
                                                                            An action against the Office for the Harmonisation in the
—      Take such other or further steps as justice may require.             Internal Market was brought before the Court of First Instance