CELEX: C1997/166/35
Language: en
Date: 1997-05-31 00:00:00
Title: Action brought on 27 March 1997 by Proderec - Formação e Desenvolvimento de Recursos Humanos, ACE, against the Commission of the European Communities (Case T-72/97)

No C 166/16          EN                  Official Journal of the European Communities                                     31 . 5 . 97
divorced husband of the second applicant never paid                 — order the Commission to pay the costs .
maintenance to the first applicant and he died without
means in 1996 .
                                                                    Pleas in law and main arguments adduced in support:
By a letter of 22 June 1995 , the appointing authority
refused, by reference to Article 17 of Annex VIII to the            The contested decisions relate to the          final   decisions
Staff Regulations, to pay a widow 's pension to the second          approving the final payment claim relating to the
applicant, since the marriage to her second husband had             applications Nos 88131 1P1 and 880249P3 for financial
lasted less than a year and none of the exceptions in the           assistance from the European Social Fund submitted by
second paragraph of Article 17 applied. By a letter of              the applicant. By means of those decisions, the
20 March 1996, payment of an orphan 's pension to the               Commission decided to reduce the amount approved by
first applicant was finally also refused, because the               way of decision No C(88 ) 0831 /29.04.88 relating to the
conditions in Article 80 of the Staff Regulations were not          grant to the now applicant of assistance to finance
satisfied .                                                         vocational training operations in Portugal .
In the application, the claim of the first applicant to an          The application is based on the following allegations:
orphan 's pension is founded, first, on the first paragraph
of Article 80 of the Staff Regulations, the argument
essentially being that the term ' orphans' pension' is used         — the      decisions  of  the    Commission      are   unlawful
in that paragraph simply because, on the death of an                    inasmuch as they are contrary to Community law, in
official, sums of money are paid to a child actually                    particular Council Decision 83/516/EEC of 17 October
maintained by that official . It is not orphans but                     1983 on the tasks of the ESF, Council Regulation
dependent children who thereby receive an orphan's                      ( EEC ) No 2950/83 of 17 October 1983 on the
pension .                                                               implementation of that decision and Commission
                                                                        Decision 83/673/EEC on the management of the ESF,
Secondly, the second, third and fourth paragraphs of
Article 80 of the Staff Regulations show that it is not             — the decisions are unfair because they run counter to
necessary for the child to have lost both parents.                      the rights and interests of the applicant which are
                                                                        already judicially protected by and derive from the
Nor can the Commission rely on Article 21 of Annex VIII                 initial Commission decision approving the applications
to the Staff Regulations, since the first paragraph thereof             and from the certificates issued by the Departamento
refers to an 'orphan'. If the legislature understood thereby            para os Assuntos do Fundo Social Europeu (Dafse )
only children who had lost both parents, Article 21 would               immediately thereafter in accordance therewith,
be self-contradictory.
                                                                    — the two decisions are contradictory in so far as,
                                                                        despite the applicant's having implemented the
                                                                        operations, a matter which was not called in question
                                                                        at the time or now, they order the repayment of
                                                                        amounts received more than seven years previously
Action brought on 27 March 1997 by Proderec — Forma­                    which     have   been   disbursed     in  the    course     of
gao e Desenvolvimento de Recursos Humanos, ACE,                         implementing the two operations and as a result of
   against the Commission of the European Communities                   them,
                       ( Case T-72/97)
                         ( 971C 166/35 )                            — they are, moreover, contradictory with other decisions
                                                                        taken previously and they completely change
             (Language of the case: Portuguese)                         presumptions of fact and of law on which the
                                                                         operations were approved and implemented,
An action against the Commission of the European
Communities was brought before the Court of First                   — the decisions are fundamentally unfair inasmuch as
Instance of the European Communities on 27 March 1997                    they breach the principles of equal treatment, sound
by Proderec — Forma^ao e Desenvolvimento de Recursos                     administration and impartiality,
Humanos, ACE, whose registered office is at Av. 25 de
Abril, n? 7-B, S/loja , Almada, represented by Manuel
Rodrigues, of the Lisbon Bar, with an address for service           — finally, the decisions are unfounded in so far as they
in Luxembourg at the Chambers of Luisa Maria Miranda                     are contrary to the certificates issued by Dafse in 1990
Sousa Pires, 4A Rue Jearv Jaures, Luxembourg L-1836 .                    and that only such certification is valid inasmuch as it
                                                                         was effected within the 13-month time-limit, are in
                                                                         accordance with the conditions laid down in the
The applicant claims that the Court should :
                                                                         Community regulation and may not be unilaterally
                                                                         revoked,
— annul the Commission's decision of 9 December on
     file 880249P3 , and the Commission's decision of
     9 December on file         881311P1 , notified to the           — the two decisions alter, modify and undermine the
     applicant on 28 January 1997,                                       criteria underlying the initial decision of approval by
 ---pagebreak--- 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