CELEX: C2004/059/40
Language: en
Date: 2004-03-06 00:00:00
Title: Case T-413/03: Action brought on 15 December 2003 by Shandong Reipu Biochemicals Co. Ltd. against the Council of the European Union

C 59/24                EN                          Official Journal of the European Union                                           6.3.2004
Pleas in law and main arguments                                            Finally, the applicant complains that owing to the Com-
                                                                           mission’s lack of activity in the first stage of the procedure, the
                                                                           length of the procedure was unreasonable within the meaning
                                                                           of Article 6(1) ECHR and complains that the order to desist is
By Decision K(2003) 3426 of 1 October 2003 the Commission                  unlawful because the relevant business has been sold in the
found that the applicant and four other undertakings had                   meantime.
infringed Article 81(1) EC by virtue of their participation in a
complex, single and continuing agreement and in concerted
practices in the sorbate sector, through which they agreed
inter alia target prices. A fine of EUR 99 million was imposed
on the applicant.
The applicant challenges the decision and claims that the
Commission infringed the principle of good administration by
unlawfully giving preferential treatment to another undertak-              Action brought on 15 December 2003 by Shandong
ing in the administrative procedure. Both undertakings cooper-             Reipu Biochemicals Co. Ltd. against the Council of the
ated with the Commission at the end of 1998 and the applicant                                      European Union
claims that the other undertaking has been given an unlawful
advantage.
                                                                                                   (Case T-413/03)
The applicant complains that there were irregularities in the
conduct of the procedure at that time and also that despite its                                     (2004/C 59/40)
requests the Commission has refused to grant it access to
Commission documents. The Commission has already allowed
access to some internal documents in the context of general                                   (Language of the case: English)
inspection of documents and it can therefore no longer rely
on general confidentiality of internal documents connected
therewith. Furthermore, a complete version of the decision, or
a version which is sufficiently comprehensible, has not been
supplied to the applicant, information in the first part of the            An action against the Council of the European Union was
decision having been blanked out without justification, thus               brought before the Court of First Instance of the European
making it impossible inter alia to comprehend how the fines                Communities on 15 December 2003 by Shandong Reipu
were calculated.                                                           Biochemicals Co. Ltd., Shandong, (People’s Republic of China),
                                                                           represented by O. Prost, lawyer.
Moreover, the applicant claims that there were errors of
assessment and of law in connection with the fixing of the                 The applicant claims that the Court should:
fine. It complains that the basic amount is disproportionate
because it has not been treated in the same way as other                   —     annul Article 1 of Council Regulation (EC) No 1656/
participants in the procedure. It also complains that the                        2003 of 11 September 2003 imposing a definitive anti-
Commission wrongly inferred that its actions had detrimental                     dumping duty and collecting definitely the provisional
consequences and that ‘senior management’ participated in the                    duty imposed on imports of para-cresol originating in
cartel. The applicant submits that the basic amounts of the                      the People’s Republic of China (OJ 2003 L 234, p. 1) as
fine calculated according to groups are wrong because, in                        long as it imposes a 12,3 % duty on imports of products
particular, the additional cartel activities of the Japanese                     manufactured by the applicant;
manufacturers have not been taken into account. The applicant
also challenges, on the merits, the further additional fine of
30 % for its alleged position as ‘ringleader’ and also the further         —     ask the Council to pay the costs.
addition of 50 % for recidivism. With regard to appraisal of its
cooperation, the applicant complains that the Commission
wrongly failed to classify it as the first cooperating undertaking.
                                                                           Pleas in law and main arguments
Moreover, the applicant complains that a previous penalty
imposed in the United States in regard to the same matter was
not taken into account and relies in that regard on the principle          The applicant is established in the People’s Republic of China
of ne bis in idem which also applies in relationships with non-            and produces and exports para-cresol to the European Union.
member countries. Although that principle does not preclude                The applicant contests Regulation (EC) No 1656/2003 which
further proceedings, it requires prior penalties to be taken into          imposes a definitive duty on imports of para-cresol, originating
account.                                                                   in the People’s Republic of China.
 ---pagebreak--- 6.3.2004               EN                         Official Journal of the European Union                                            C 59/25
The applicant submits that the Council failed to determine the            —     annul the implied decision to reject the applicant’s
normal value in an appropriate and not unreasonable manner                      complaint submitted on 27 May 2003 in accordance
within the meaning of Article 2(5) of Regulation (EC) No 384/                   with Article 90(2) of the Staff Regulations and seeking
96 (1), as modified, and in conformity with its duty of due care.               the annulment of the contested decision;
The Commission, who initiated an anti-dumping procedure
under Article 5 of the Regulation, should not have ignored the            —     order the defendant to pay to the applicant the sum of
anti-dumping rule according to which costs of by-products                       EUR 20 000 assessed on an equitable basis, subject to
should not be taken into account, but instead should be                         increase or decrease in the course of the proceedings, in
deducted, in the normal value determination, in order to meet                   respect of damages for non-material harm and harm to
the need for a normal value determined in an appropriate and                    his career, on the basis both of substantial irregularities
not unreasonable manner. According to the applicant, the                        and of significant delay in the writing of the 2001 report
Commission was aware of the difference between the costs of                     in a particularly distressing period for the applicant;
production related to the production of para-cresol, on the
one hand, and the costs of production related specifically to             —     order the defendant to pay the costs in accordance with
the by-products (sodium sulfite and mixed phenol), on the                       Article 87(2) of the Rules of Procedure of the Court of
other hand. By extending the scope of the investigation to the                  First Instance.
two by-products and by taking into account the by-products
in the normal value determination, the Commission violated
the duty of due diligence.
                                                                          Pleas in law and main arguments
Furthermore, the applicant claims that the Council failed to
respect the duty of good administration and that it violated              The applicant claims, firstly, a breach of Articles 26 and 43 of
Article 2 of Regulation (EC) No 384/96 by failing to calculate            the Staff Regulations, of the general provisions for giving effect
a normal value for the like product only.                                 to Article 43 as adopted by the Bureau of the European
                                                                          Parliament on 8 March 1999 and of the instructions relating
                                                                          to the procedure for the writing of staff reports.
(1) Council Regulation (EC) No 384/96 of 22.12.1995 on protection
    against dumped imports from countries not members of the
    European Community (OJ L 56 of 6.3.1996, p. 1).                       He also pleads misuse of powers and infringement of general
                                                                          principles of law, such as respect for the rights of the defence,
                                                                          the principle of good administration, the principle of the
                                                                          protection of legitimate expectations and the duty to have
                                                                          regard for the welfare of officials, the principle of equal
                                                                          treatment and those general principles requiring the AIPN to
                                                                          take a decision only on the basis of legally permissible grounds,
                                                                          namely those which are pertinent and not tainted by a manifest
                                                                          error of assessment, fact or law.
Action brought on 19 December 2003 by Angel Angelidis
              against the European Parliament
                         (Case T-416/03)
                          (2004/C 59/41)
                                                                          Action brought on 22 December 2003 by Fédération
                                                                          Internationale des Maisons de l’Europe (FIME) against the
                   (Language of the case: French)                                  Commission of the European Communities
                                                                                                   (Case T-417/03)
An action against the European Parliament was brought before
the Court of First Instance of the European Communities                                             (2004/C 59/42)
on 19 December 2003 by Angel Angelidis, resident in
Luxembourg, represented by Eric Boigelot, lawyer.
                                                                                             (Language of the case: French)
The applicant claims that the Court should:
                                                                          An action against the Commission of the European Communi-
—     annul the decision of the Secretary General of the                  ties was brought before the Court of First Instance of the
      European Parliament taken on 4 March 2003 definitively              European Communities on 22 December 2003 by Fédération
      adopting the applicant’s staff report for 2001;                     Internationale des Maisons de l’Europe, established in Saar-
                                                                          brücken (Germany), represented by Pierre Soler-Couteaux,
—     annul that staff report for 2001;                                   lawyer.