CELEX: C1998/166/08
Language: en
Date: 1998-05-30 00:00:00
Title: Appeal brought on 20 March 1998 by Ajinomoto Co. Inc. against the judgment delivered on 18 December 1997 by the Fifth Chamber (Extended Composition) of the Court of First Instance of the European Communities in joined Cases T-159/94 between Ajinomoto Co. Inc. and the Council of the European Union, supported by the Commission of the European Communities, and T-160/94 between The NutraSweet Company and the Council of the European Union, supported by the Commission of the European Communities (Case C-76/98 P)

30.5.98              EN                 Official Journal of the European Communities                                  C 166/5
Appeal brought on 20 March 1998 by Mario Costacurta                    for Official Publications are, in budgetary terms, part
against the judgment delivered on 22 January 1998 by the               of the Commission's total staff', since that has not
Third Chamber of the Court of First Instance of the                    been the case since 1970;
European Communities in Case T-98/96 between Mario
     Costacurta and the Commission of the European
                         Communities                               Ð Infringement of Article 7 of the Staff Regulations;
                      (Case C-75/98 P)
                        (98/C 166/07)                              Ð Contravention of the principle of the protection of
                                                                       legitimate expectations and the duty to have regard for
                                                                       the welfare of officials;
An appeal against the judgment delivered on 22 January
1998 by the Third Chamber of the Court of First Instance
of the European Communities in Case T-98/96 between                Ð Infringement of Articles 25 and 101a of the Staff
Mario Costacurta and the Commission of the European                    Regulations.
Communities was brought before the Court of Justice of
the European Communities on 20 March 1998 by Mario                 (1) OJ C 94 of 28.3.1998, p. 20.
Costacurta, represented by Albert Rodesch, Avocat-avoueÂ,          (2) OJ L 13 of 18.1.1969, p. 19.
with an address for service in Luxembourg at 7Ð11
Route d'Esch.
The appellant claims that the Court should:
Ð annul the judgment delivered on 22 January 1998 by               Appeal brought on 20 March 1998 by Ajinomoto Co. Inc.
    the Court of First Instance in Case T-98/96 Costacurta         against the judgment delivered on 18 December 1997 by
    v Commission (1);                                              the Fifth Chamber (Extended Composition) of the Court
                                                                   of First Instance of the European Communities in joined
                                                                   Cases T-159/94 (1) between Ajinomoto Co. Inc. and the
Ð annul the appointing authority's decision of 31 May
    1996 reassigning the appellant to the Office for               Council of the European Union, supported by the
    Official Publications of the European Communities;             Commission of the European Communities, and T-160/
                                                                   94 (2) between The NutraSweet Company and the Council
                                                                   of the European Union, supported by the Commission of
Ð order the Commission to pay the costs of proceedings                              the European Communities
    before both the Court of Justice and the Court of First
                                                                                          (Case C-76/98 P)
    Instance;
                                                                                            (98/C 166/08)
Ð reserve to the appellant all other rights and
    entitlements, including the right to put forward pleas
    in law or bring proceedings, particularly regarding            An appeal against the judgment delivered on 18 December
    compensation for damage.                                       1997 by the Fifth Chamber (Extended Composition) of
                                                                   the Court of First Instance of the European Communities
                                                                   in joined Cases T-159/94 between Ajinomoto Co. Inc. and
Pleas in law and main arguments:                                   the Council of the European Union, supported by the
                                                                   Commission of the European Communities, and T-160/94
Ð Lack of competence on the part of the appointing                 between The NutraSweet Company and the Council of the
    authority, infringement of Articles 2 and 4 of the Staff       European Union, supported by the Commission of the
    Regulations and of Article 5(4) of Decision 69/13/             European Communities, was brought before the Court of
    Euratom/EEC setting up the Office for Official                 Justice of the European Communities on 20 March 1998
    Publications of the European Communities (2): the              by Ajinomoto Co. Inc., of 15-1, Kyobashi itchome, Chuo-
    Court of First Instance erred in dismissing as irrelevant      ku, Tokyo 104, Japan, represented by Mario Siragusa, of
    the plea in law alleging infringement of Article 4 of          the Rome Bar, Till Müller-Ibold, of the Frankfurt Bar, and
    the Staff Regulations. Since the appointing authoritiy         Victoria Donaldson, Solicitor of the Supreme Court of
    which adopted the contested decision was in no way a           England and Wales, instructed by Cleary, Gottlieb, Steen
    budgetary authority and since it was not empowered             & Hamilton, Brussels, with an address for service in
    to amend the lists of authorised posts, it could not           Luxembourg at the Chambers of Marc Loesch, 11, Rue
    assign the appellant to the Official Publications Office       Goethe.
    together with his post;
                                                                   The Appellant claims that the Court should:
Ð Infringement of Article 6 of the Staff Regulations,
    infringement of the Council regulation on the budget
    of the European Communities: the Court of First                Ð quash the judgment of the Court of First Instance in
    Instance was wrong to state in paragraph 34 of the                 joined Cases T-159/94 and T-160/94 and annul
    judgment under appeal that, as a matter of law, as the            Council Regulation (EEC) No 1391/91 (3) of 27 May
    Commission has pointed out, the posts with the Office              1991 in so far as it applies to the Appellant;
 ---pagebreak--- C 166/6              EN                 Official Journal of the European Communities                                    30.5.98
Ð in the alternative, quash the judgment of the Court of           and this defect in the Provisional Duty could not be and
    First Instance in joined cases T-159/94 and T-160/94           was not remedied in the Definitive Duty Regulation.
    in so far as it does not annul Article 2 of Council
    Regulation (EEC) No 1391/91 of 27 May 1991                     (1) OJ C 291 of 8.11.1991, p. 8.
    ordering the definitive collection of the amounts              (2) OJ C 291 of 8.11.1991, p. 9.
    secured by way of provisional anti-dumping duty and            (3) Council Regulation (EEC) No 1391/91 of 27 May 1991
    annul Article 2 of that Regulation in so far as it                 imposing a definitive anti-dumping duty on imports of
    applies to the Appellant;                                          aspartame originating in Japan and the United States of
                                                                       America (OJ L 134 of 29.5.1991, p. 1).
                                                                   (4) Council Regulation (EEC) No 2423/88 of 11 July 1988 on
Ð order such other or further relief as may be lawful or               protection against dumped or subsidized imports from
    equitable; and                                                     countries not members of the European Economic Community
                                                                       (OJ L 209 of 2.8.1988, p. 1).
Ð order the Council to pay the Appellant's costs.
Pleas in law and main arguments:
The Appellant submits that the judgment of the Court of            Appeal brought on 20 March 1998 by the NutraSweet
First Instance contains fundamental errors of law and              Company against the judgment delivered on 18 December
must be set aside.                                                 1997 by the Fifth Chamber (Extended Composition) of
                                                                   the Court of First Instance of the European Communities
First, the Court of First Instance erred in finding that           in joined Cases T-159/94 (1) between Ajinomoto Co. Inc.
patent-protection in the exporter's domestic market alone          and the Council of the European Union, supported by the
is irrelevant to the price comparability requirement               Commission of the European Communities, and T-160/
contained in Article 2(3) of Council Regulation (EEC)              94 (2) between The NutraSweet Company and the Council
No 2423/88 (4), hereinafter the Basic Regulation'. The            of the European Union, supported by the Commission of
ordinary meaning of the word comparable' within                                      the European Communities
Article 2(3), the overall scheme of the Basic Regulation                                   (Case C-77/98 P)
and of the process for establishing and comparing normal
value and export price, GATT law, U.S. law, and the aims                                     (98/C 166/09)
and objectives of anti-dumping law and of intellectual
property law all lead to the conclusion that patent-
                                                                   An appeal against the judgment delivered on 18 December
protection is a matter affecting price comparability within
                                                                   1997 by the Fifth Chamber (Extended Composition) of
the meaning of Article 2(3) and that normal value may
                                                                   the Court of First Instance of the European Communities
not be established on the basis of actual domestic prices
                                                                   in joined Cases T-159/94 between Ajinomoto Co. Inc. and
when those prices (but not export prices) are the result of
                                                                   the Council of the European Union, supported by the
patent-protected sales.
                                                                   Commission of the European Communities, and T-160/94
                                                                   between The NutraSweet Company and the Council of the
Second, the Court of First Instance erred, for the same            European Union, supported by the Commission of the
reasons, in basing normal value for Japanese origin                European Communities, was brought before the Court of
aspartame on U.S. patent-protected prices. Articles 2(3)           Justice of the European Communities on 20 March 1998
and 2(6) of the Basic Regulation preclude the                      by The NutraSweet Company, of 1751, Lake Cook Road,
determination of normal value on the basis of actual               Deerfield, Illinois 60015, United States of America,
prices in a country (other than the country of origin) from        represented by Jean-FrancËois Bellis, of the Brussels Bar,
which a product is shipped to the Community when there             and Fabrizio Di Gianni, of the Rome Bar, of Van Bael &
is no comparable price' in that intermediate market.              Bellis, Brussels, with an address for service in Luxembourg
Patent-protected prices are not comparable prices.                 at the Chambers of Jacques Loesch, 11, Rue Goethe.
Third, the Court of First Instance erred in finding that a         The Appellant claims that the Court should:
failure by the Commission to grant any disclosure of its
determinations prior to the imposition of provisional
                                                                   Ð quash the judgment of the Court of First Instance in
duties is a defect which can be remedied after the
                                                                        joined cases T-159/94 and T-160/94 and annul Council
imposition of provisional duties and does not, therefore,
                                                                        Regulation (EEC) No 1391/91 (3) of 27 May 1991 in
affect the validity of the defintive collection of the
                                                                        so far as it applies to the Appellant;
provisional duties. The fundamental principles of
Community law Ð in particular the right to be heard Ð
and the practice of the Commission in other cases required         Ð in the alternative, quash the judgment of the Court of
the Commission to disclose essential facts and                          First Instance in joined cases T-159/94 and T-160/94
considerations to the Appellant prior to the adoption of                in so far as it does not annul Article 2 of Council
the Provisional Duty Regulation. The Commission's                       Regulation (EEC) No 1391/91 of 27 May 1991
failure to make timely disclosure of such matters to the                ordering the definitive collection of the amounts
Appellant amounted to a breach of this fundamental                      secured by way of provisional anti-dumping duty and
principle as well as to discrimination. This fundamental                annul Article 2 of that Regulation in so far as it
breach rendered the Provisional Duty Regulation invalid,                applies to the Appellant;