CELEX: C1997/357/58
Language: en
Date: 1997-11-22 00:00:00
Title: Action brought on 12 September 1997 by T. Port GmbH & Co. against the Commission of the European Communities (Case T-251/97)

C 357/30               EN                  Official Journal of the European Communities                                           22 . 11 . 97
Action brought on 29 August 1997 by Kaufhof                           imposed in the regulation did not enter into force until
Warenhaus AG against the Commission of the European                    14 June 1997.
                            Communities
                         ( Case T-245/97)                             The applicant submits that by virtue of the Community
                                                                      case-law on the calculation of time-limits the final date for
                           ( 97/C 357/57                              the imposition of the anti-dumping duties in question was
                                                                       13 June 1997. The regulation must be regarded as
                                                                      unlawful on account of failure to observe the time-limit
                 (Language of the case: English)                      prescribd by Article 7 ( 1 ) of the basic regulation for the
                                                                      imposition of provisional anti-dumping duties.
An action against the Commission of the European                      (') OJ L 156, 13 . 6 . 1997, p. 11 .
Communities was brought before the Court of First                     ( 2 ) According to Article 7 ( 1 ) of Council Regulation No 384/96
Instance of the European Communities on 29 August                           of 22 December 1995 on protection against dumped imports
 1997 by Kaufhof Warenhaus AG, represented by Ursula                        from countries not members of the European Communities
Schliessner, Rechtsanwalt, Diisseldorf, instructed by James                 ( OJ L 56 , 6 . 3 . 1997, p. 1 ), 'The provisional duties shall be
Searles of Oppenheimer Wolff & Donnelly, Brussels, with                     imposed no earlier than 60 days from the initiation of the
an address for service in Luxembourg at the office of                       proceedings but not later than nine months from the initiation
Arendt & Medernach, 8—10 rue Mathias Hardt.                                 of the proceedings .'
The applicant claims that the Court should:
— declare the anti-dumping duties imposed pursuant to                 Action brought on 12 September 1997 by T. Port GmbH
     Commission Regulation ( EC ) No 1069/97 and,                               & Co. against the Commission of the European
     consequently, the regulation itself, illegal and void,                                           Communities
                                                                                                   ( Case T-251/97)
— order the Commission to pay the costs of the applicant                                             ( 97/C 357/58 )
     in the present proceedings.
                                                                                        (Language of the case: German)
Pleas in law and main arguments adduced in support:                   An action against the Commission of the European
                                                                      Communities was brought before the Court of First
                                                                      Instance of the European Communities on 12 September
The applicant, a major German importer and retailer of                1997 by T. Port GmbH & Co., Hamburg, represented by
certain bed linen from various third countries, challenges            Gert Meier, Cologne, with an address for service in
Commission Regulation (EC) No 1069/97 of 12 June                      Luxembourg at the Chambers of Marc Baden, 24 Rue
1997 imposing a provisional anti-dumping duty on                      Marie-Adelaide .
imports of cotton-type bed linen originating in Egypt,
India and Pakistan (').
                                                                      The applicant claims that the Court should:
The single ground of illegality put forward is that,                  — annul, on the grounds of infringement of the Treaty
contrary to the nine-month time-limit prescribed by the                       and misuse of powers, the decision of the Commission
basic anti-dumping regulation for the imposition of                           of 9 July 1997 refusing to adopt transitional measures
provisional anti-dumping duties, the contested regulation                     in favour of T. Port under the common organization of
by its own terms enters into force after the expiry of that                   the market in bananas,
period (2 ).
                                                                      — order the Commission to pay the costs .
The applicant states that, acting on a complaint lodged
with the European Commission on 30 July 1996 by the                   Pleas in law and main arguments adduced in support:
Committee of the Cotton and Allied Textile Industries of
the European Communities ( Eurocotton ), the defendant                The applicant, an undertaking which trades in bananas,
initiated the anti-dumping investigation relating to the              had applied on 16 December 1996 for the allocation of
present case by a notice published in the Official Journal            additional import licences for third country bananas under
of the European Communities on 13 September 1996 .                    the rules on tariff quotas, pursuant to Article 30 of
Article 3 ( 1 ) of the contested regulation provides that 'this       Council Regulation ( EEC ) No 404/93 ('). Following the
Regulation shall enter into force on the day following its            failure to make a decision on that application, the
publication in the Official Journal of the European                   applicant brought an action on 27 February 1997 ( Case
Communities'. The regulation was published in OJ L 156,               T-39/97) for failure to act, seeking a declaration that the
13 . 6 . 1997. This means that, according to the terms of             Commission had infringed Regulation ( EEC ) No 404/93
the Commission's own provision, the anti-dumping duties               by not granting the import licences applied for.
 ---pagebreak--- 22 . 11 . 97          IEN |                 Official Journal of the European Communities                                        C 357/31
By the decision of 9 July 1997 which is now being                      Pleas in law and main arguments adduced in support:
challenged, the Commission refused the application made
by the applicant on 16 December 1996 .
                                                                       By the contested decision, the application made by the
                                                                       applicant for the award of additional licences to import
The applicant relies on a number of incidents (colapse of              bananas within the framework of the customs quota,
businesses, criminal activities) with South American                   pursuant to Article 30 of Regulation (EEC ) No 404/93 ('),
contractual partners or potential contractual partners                 was granted only in part.
which, it contends, amount to force majeure and justify
the adoption of arrangements to cater for a case of
hardship, in accordance with the case-law of the Court of              In 1991 , the applicant had concluded a long-term contract
Justice (2). Furthermore, the applicant had concluded a                with an Ecuadorian undertaking. That contract contains a
preliminary contract in November 1991 with a South                     guarantee by the applicant as regards the difference with
American undertaking. At that time it was not to be                    the official producer prices in Ecuador and an obligation
envisaged that the external trade rules of the Community               on it to pay to its contractual partner compensation of up
system for bananas would consist of quota rules with                   to US $ 1 million, if it terminates the contract before the
favourable tariffs . The applicant should not under any                agreed date on grounds other than those provided for in
circumstances have had to anticipate a flagrant                        the contract. A restriction on imports was not agreed as a
infringement of the GATT, as was established by the                    ground for termination since, at that time, the parties to
GATT Panel in January 1994. It could have expected that                the agreement still did not have any idea of the structure
it would not be impeded when it marketed in the                        of an EC market organization for bananas. In particular,
Community through quotas the quantities contracted for                 the applicant should have been able to assume that a
with its contractual partner.                                          future EC market organization for bananas would comply
                                                                       with the GATT and, at any rate, that the quantities
                                                                       contracted for would be allowed to be marketed in the
(') OJ L 47, 25 . 2 . 1993 , p . 1 .
(2 ) Case C-68/95 T. Port v. Bundesanstalt für Landwirtschaft und      Community unhindered by quotas.
     Ernährung [ 1996] ECR 1-6065 .
                                                                       The applicant contends that its inability to import the
                                                                       bananas into the Community because it does not have an
                                                                       import licence amounts to a circumstance which satisfies
                                                                       all the preconditions for the adoption of arrangements to
                                                                       cater for a case of hardship.
Action brought on 16 September 1997 by Anton Diirbeck
        GmbH against the Commission of the European
                             Communities                               The applicant challenged, in addition to the part of the
                          ( Case T-252/97)
                                                                       decision refusing the grant of the licences, the provision
                                                                       under which the licences granted on grounds of hardship
                            ( 97/C 357/59 )                            are not to be taken into account in calculating its
                                                                       reference quantities for future years. The contested
                 (Language of the case: German)                        decision adopted by the Commission not only infringes
                                                                       Article 30 of Regulation No 404/93 as interpreted by the
                                                                       Court of Justice in its case-law ( 2 ) but also constitutes a
An action against the Commission of the European                       misuse of powers.
Communities was brought before the Court of First
Instance of the European Communities on 16 September
                                                                       (') OJ L 47, 25 . 2 . 1997, p . 1 .
 1997 by Anton Diirbeck GmbH, Frankfurt am Main,                        ( 2 ) Case C-68/95 T. Port v. Bundesanstalt für Landwirtschaft und
represented by Gert Meier, Rechtsanwalt, Cologne, with                        Ernährung [ 1996] ECR 1-6065 .
an address for service in Luxembourg at the Chambers of
Marc Baden, 24 Rue Marie-Adelaide .
The applicant claims that the Court should:
— annul, on the grounds of infringement of the Treaty                  Action brought on 19 September 1997 by Fruchthandels­
      and misuse of powers, the decision of the Commission             gesellschaft mbH Chemnitz against the Commission of the
      of 10 July 1997 on the adoption of transitional                                         European Communities
      measures in favour of A. Diirbeck under the common
                                                                                                 (Case T-254/97)
      organization of the market in bananas in so far as,
      pursuant to Article 1 ( 6 ) of the decision, the licences                                    ( 97/C 357/60 )
      granted on grounds of hardship are not to be taken
      into account in calculating the applicant's reference
      quantities for future years and, under Article 2, the                              (Language of the case: German)
      further applications made by the applicant on
      24 December 1996 were rejected,
                                                                        An action against the Commission of the European
                                                                        Communities was brought before the Court of First
 — order the Commission to pay the costs.                               Instance of the European Communities on 19 September