CELEX: C1996/318/24
Language: en
Date: 1996-10-26 00:00:00
Title: Action brought on 26 July 1996 by Thai Bicycle Industry Co. Ltd against the Council of the European Union (Case T-118/96)

26 . 10 . 96           EN                    Official Journal of the European Communities                                  No C 318/ 11
The applicant asks that the second paragraph of Article 215             Pleas in law and main arguments adduced in support
of the EC Treaty be applied on the basis of the no-fault
liability to which the functioning of the institutions gave rise        The applicant, an undertaking incorporated under German
and, in the alternative, on the basis of the Community                  law which wishes to advertise by fax, contests the
authorities' liability for fault.                                       Commission 's refusal to adopt a position on its complaint
                                                                        against the Federal Republic of Germany following the
In the context of no-fault liability, it relies on the concept of       judgment of the Bundesgerichtshof ( Federal Court of
public liability for breach of the principle of equality in             Justice ) of 25 October 1 995 , which restricted advertising by
bearing public burdens, claiming that application of the                fax solely to cases in which the recipient has expressly or by
system of an ' area without frontiers' instituted by the Single         implication consented to the receipt of such
Act caused to it, as an authorized customs agent, exceptional           communications .
special and direct damage . The consequence of the abolition
of the authorized customs agent's activities was a massive              That refusal is incompatible both with the Community
reduction in the turnover of certain businesses in the sector           competition rules and with the principles governing the
and, much more seriously, the disappearance of some of                  setting-up and functioning of the internal market. In
them .                                                                  particular, the effect of the abovementioned judgment of the
                                                                        Bundesgerichtshof has been to strengthen the market
As regards liability for the fault of the Community's agents,           position of large undertakings in the advertising industry
the applicant maintains that, in the context of the legislative         ( the print and broadcasting media ). In addition, that
action of the Community which caused the damage , the                   judgment constitutes an obstacle to the creation of a
Community authorities disregarded the vested rights of                  homogeneous market .
customs agents and the principle of the protection of
legitimate expectations .
Referring to the nature of the damage , the applicant states
that as a result of the establishment of the European Area , in
its activities as a forwarding agent which it had pursued for a         Action brought on 26 July 1996 by Thai Bicycle Industry
considerable length of time, it abruptly suffered two-fold                   Co . Ltd against the Council of the European Union
damage in the form of: ( a ) the practically total and definitive                               ( Case T-l 18/96 )
loss of its business as a customs agent, and ( b ) the                                            ( 96/C 318/24 )
exceptional costs of running its business when it was
 required to face up to the unexpectedness of events, above                             (Language of the case: English)
 all in the social area , but also in the technical and
 administrative areas .
                                                                        An action against the Council of the European Union was
                                                                         brought before the Court of First Instance of the European
                                                                         Communities on 26 July 1996 by Thai Bicycle Industry Co .
                                                                         Ltd , represented by Jean-Frangois Bellis and Richard Luff,
                                                                         with an address for service in Luxembourg at the Chambers
 Action brought on 29 July 1996 by Intertronic-F. Cornells               of A. F. Brausch, 8 rue Zithe .
 GmbH against the Commission of the European
                            Communities
                                                                         The applicant claims that the Court should :
                         ( Case T- 11 7/96 )
                                                                         — annul Council Regulation ( EC ) No 648/96 of 28 March
                           ( 96/C 318/23 )
                                                                              1996 imposing a definitive anti-dumping duty on
                                                                              imports of bicycles originating in, inter alia, Thailand in
                 (Language of the case: German)                               so far as it imposes a definitive anti-dumping duty on
                                                                              bicycles manufactured by the applicant,
 An action against the Commission of the European
 Communities was brought before the Court of First                            and
 Instance of the European Communities on 29 July 1996 by
 Intertronic-F . Cornelis GmbH, Emden ( Federal Republic of              — order      the   Council    to  bear   the   costs   of  these
 Germany ), represented by Professor Schumacher, Bremen                       proceedings .
 ( Germany ), and Wilhelm Wiltfang, Rechtsanwalt,
 Krummhorn ( Germany ).                                                  Pleas in law and main arguments adduced in support
 The applicant claims that the Court should :                            The applicant, a limited company established under the laws
                                                                         of Thailand, specializing in the production of bicycles and
 — declare that the defendant has failed, contrary to the EC              bicycle and motorcycle parts , challenges the imposition of
     Treaty, to put a stop to the implementation by the                   anti-dumping duties on its exports to the European
     enforcement authorities of the Federal Republic of                   Community .
     Germany, and by the legally established associations for
     the promotion of commercial interests , of the ban on                The applicant submits that the institutions have committed
     advertising by fax, constituting a breach of the                     two manifest errors in determining its dumping margin :
     prohibition of restraints of trade ;
                                                                          The applicant's dumping margin has been artificially
  — order the defendant to pay the costs .                                inflated, contrary to Article 2 ( 3 ) ( b ) ( ii ) of Council
 ---pagebreak--- No C 318 / 12         EN                 Official Journal of the European Communities                                    26 . 10 . 96
Regulation (EEC ) No 2423/88 , by the institutions' refusal to      — order the Commission to pay the costs .
use the applicant's profit margin in computing the
applicant's constructed normal value . Rather, the
institutions have used the profit margin which they                 Pleas in law and main arguments adduced in support
computed for other producers . The refusal in question is to
be considered as a result of several arbitrary or illogical         The applicant is the developer of a veterinary medicinal
determinations, such as:                                            product called Optiflex 640, which is a recombinant bovine
                                                                    somatotrophin ( BST ) used for administration to dairy cows
                                                                    as a productivity aid to milk production. Owing to the fact
— the determination that the profit margin on a company's           that this is a product derived from biotechnology, it is
    profitable domestic sales in the exporting country              subject to the procedure for marketing authorization laid
    cannot be used to compute the company's constructed             down in Council Directive 87/22/EEC and also to the
    normal value if such company's profitable domestic              Community procedure for establishing maximum residue
    sales represent less than 10% in volume ( but not               limits ( MRLs ) of veterinary medicinal products in
    turnover ) of its total domestic sales,
                                                                    foodstuffs of animal origin laid down in Regulation ( EEC )
                                                                    No 2377/90 ('the Regulation '). Member States are not to
— the determination that the applicant's cost of production         authorize the placing on the market of a veterinary
    should be increased by percentage points (to such an            medicinal product unless, inter alia, the active substance
    extent that, as a result, the applicant's profitable            capable of pharmacological action is mentioned in Annex I
    domestic sales happened to represent slightly less than         ( substances in respect of which MRLs have been
    10% in volume — but not turnover — of its total                 established ), II ( substances in respect of which it is not
    domestic sales ) on arbitrary and illogical grounds .           necessary for the protection of public health to establish an
                                                                    MRL ) or III ( substances in respect of which a provisional
The institutions have also infringed Article 2 ( 3 ) of Council     MRL is applicable ) to the Regulation .
Regulation ( EEC ) No 2423/88 in refusing to apply the
' OEM adjustment' in the determination of the applicant's           The applicant challenges in the present case the refusal by
constructed normal value . Even though, according to the            the Commission to add BST to the products figuring in
applicant, the substantive conditions for the application of        Annex II, and submits that the contested decision should be
the ' OEM adjustment' were met, the institutions have               annulled on the following grounds :
confused the ' OEM adjustment', which they are required to
make pursuant to Article 2 ( 3 ), with a claim for allowances       — Infringement of the Community procedure for the
under Article 2 ( 10 ) of Regulation ( EEC ) No 2423/88 .               establishment of MLRs, as laid down in Article 6 of the
                                                                        Regulation .
                                                                        The Commission 's decision was based on confusion
                                                                         between the concept of MRLs and marketing
                                                                        authorizations and on an incorrect interpretation of the
                                                                         Council Decision imposing a moratorium on BST. There
                                                                        is nothing in the Regulation to suggest that the
Action brought on 1 August 1996 by Lilly Industries Ltd                 establishment of an MRL is subject to the condition that
  against the Commission of the European Communities                    the substance will immediately benefit from a marketing
                       ( Case T-120/96 )                                authorization, so that an MRL could be obtained for
                          96/C 318/25 )                                 products which, purely provisionally, may not be placed
                                                                         on the market owing to the existence of a moratorium.
                                                                        The applicant stresses in this regard that some uses of
               (Language of the case: English)                           BST are still possible even now and that there is therefore
                                                                        already a need to establish an MRL.
An action against the Commission of the European
Communities was brought before the Court of First                   — Misuse of powers and breach of the principle of legal
Instance of the European Communities on 1 August 1996 by                certainty.
Lilly Industries Ltd, represented by Denis Waelbroeck, of
the Brussels Bar, of Liedekerke Wolters Waelbroeck &                    The contested decision runs counter to the assurances
Kirkpatrick, 3 boulevard de PEmpereur, Brussels, with an                given in the past that the Commission would apply solely
address for service in Luxembourg at the offices of Arendt &            traditional criteria of safety, quality and efficacy in
Medernach, boite postale 39, L-2010 Luxembourg.                         assessing veterinary products in the biotechnology
                                                                         sector, to the assurances specifically given to the
                                                                         applicant that an MRL would soon be established for
The applicant claims that the Court should :                             Somidobove and to the conditions prescribed in the
                                                                         Regulation, inasmuch as the defendant was not entitled
— annul the Commission Decision of 22 May 1996                          to refuse to grant an MRL for reasons other than the
    concerning a definition of a position, in accordance with            safety of the product.
    Article 175 of the EC Treaty, on the inclusion of bovine
    somatotrophin in Annex II to Council Regulation ( EEC )         — Infringement of Article 2 of the Council Decision
    No 2377/90 ,                                                        amending Decision 90/218/EEC, concerning the placing