CELEX: C1995/351/38
Language: en
Date: 1995-12-30 00:00:00
Title: Action brought on 3 November 1995 by Windstar Sail Cruises Limited, Wind Star Limited and Wind Spirit Limited against the Commission of the European Communities (Case T-209/95)

No C 351 /20             EN                    Official Journal of the European Communities                                      30 . 12 . 95
originating in Indonesia , the Republic of Korea , Taiwan and             Action brought on 3 November 1995 by Windstar Sail
Thailand and collecting definitively the provisional duty .               Cruises Limited, Wind Star Limited and Wind Spirit Limited
MSG produced and exported to the Community by                               against the Commission of the European Communities
companies which offered undertakings which had been                                                ( Case T-209/95 )
accepted by the Commission was exempted from definitive
duties and the applicant was among the companies                                                     ( 95/C 351 /38 )
exempted from the definitive anti-dumping duty . Following
a request for a review under Article 14 of Council
Regulation ( EEC ) No 2423/88 lodged by Orsan , the sole                                   (Language of the case: English)
Community producer of MSG , the Commission on 9 July
1994 published notice 94/C 187/06 concerning the
initiation of a review of all the anti-dumping measures                   An action against the Commission of the European
applicable to imports of MSG originating in Indonesia , the               Communities was brought before the Court of First
Republic of Korea , Taiwan and Thailand . On 8 June 1995                  Instance of the European Communities on 3 November
the Commission sent a disclosure letter to the applicant                  1995 by Windstar Sail Cruises Limited, Wind Star Limited
announcing its intention to withdraw its price undertakings               and Wind Spirit Limited, represented by Alfred Merckx, of
and to replace it by a provisional anti-dumping duty based                the Brussels Bar ( Sinclair Roche & Temperley ), Broadwalk
on the facts established before the acceptance of the price               House, 5 Appold Street, London ..
undertaking. The Commission considered that ' even if the
export prices , taken at their face value, did correspond to the
terms of the undertakings, the level of the resale prices of the
merchandise in the Community nevertheless constitute a                    The applicants claim that the Court should :
clear indication of the violation of the undertakings'. On
18 July the Commission adopted Regulation ( EC )                          — annul pursuant to Articles 173 and 174 of the EC Treaty
No 1754/95 , the act contested in the present application .                    the Commission decision of 21 June 1995 in so far as it
                                                                               considers the aid granted by the French government
                                                                               for the building of the 'Tahiti Nui ' as development aid
The applicant asserts that the contested Regulation is                         under Article 4 ( 7 ) of the shipbuilding Directive and
manifestly unlawful in that it is based on invalid grounds . It                compatible with the common market,
explains that the Commission based its decision on
Article 10 ( 6 ) of Council Regulation ( EEC ) No 2423/88 ,
that is , on the finding that the applicant was in breach of its          — order the Commission to pay the costs .
undertaking . The applicant maintains that this finding is
manifestly unlawful :
                                                                          Pleas in law and main arguments adduced in support:
( 1 ) to the extent that it is based on facts which do not
       individually concern the applicant;                                The applicants who operate cruises between various EC
                                                                          ports in the Mediterranean and between ports of call in the
                                                                          Caribbean and French Polynesia are challenging the
                                                                          Commission 's decision not to raise objections to State aid
( 2 ) in that it rests on a fundamental error of law, namely              granted to their French competitor ' Services et Transports'
       the notion that a finding of a breach of a price                   for the building, by the French shipbuilding yard Ateliers et
       undertaking can be based on an analysis of the resale              Chantiers du Flavre, of a ship to be named 'Tahiti Nui '
       prices of the product concerned by independent                     which would go into operation in French Polynesia from
       importers in the Community;                                         1996 . The Commission has considered this aid to be
                                                                          development aid as within the meaning of Article 4 ( 7 ) of the
                                                                          shipbuilding Directive and therefore to be compatible with
 ( 3 ) in that it is based on a secret file of which no details have       Community law.
       been disclosed to the applicant, thus depriving it of its
       fundamental right to be heard; and
                                                                          In support of their application the applicants state as
                                                                           follows :
 ( 4 ) in that it is unjustified for the Commission to consider
       that the importer in Germany referred to in point 6 of             — the decision infringes Article 93 of the EC Treaty, in so
       the contested Regulation was related to the applicant                    far as the Commission can only take a decision to raise
       during the investigation period and that, in any event,                  no objections without initiating the procedure under
       this question is unrelated to the question of whether the                Article 93 ( 2 ) when it is prima facie manifestly apparent
       applicant was in breach of its undertaking.                              that the aid is compatible with Community law .
                                                                                However, in the present case whilst the defendant
                                                                                institution had initially expressed serious doubts about
                                                                                opening the Article 93 ( 2 ) procedure, it had de facto
                                                                                taken this aid out of the scope of this procedure and
                                                                                examined it under the simplified verification procedure
 ---pagebreak--- 30 . 12 . 95            LN                  Official Journal of the European Communities                                No C 351 /21
    under Article 93 ( 3 ). In any case, the assessment as to              ( b ) annul the decision of the selection board of
    whether or not shipbuilding aid can be exempted as                           15 November 1994 refusing to admit her to
    development aid under Article 4 ( 7 ) of the shipbuilding                    competition COM/T/A/95 ;
    Directive     involves     difficult factual    issues   which
    necessitate the       initiation of the      Article   93    (2)
                                                                       — in the a ternative :
    procedure,
                                                                           ( a ) declare that the decisions by which the Commission
— the Commission has failed to establish that the contested                      adopted its general policy regarding temporary staff
    aid was necessary in order for the shipping line to                          in March 1992 and February 1 994 are in breach of
    contribute to the development of the developing                              the principles referred to in the applicant's pleas,
    country . It is clear that the contrary is the case in that the              and declare them inapplicable to the applicant;
    real owners of the 'Tahiti Nui ' are French companies
    who want to take advantage of generous tax advantages                  ( b ) annul the decision of the Commission of 27 July
    and do not need development aid in order to contribute                       19 95 refusing to admit her to any supplemental
    to the development of the French overseas departments                        competition leading to establishment other than
    and territories but can afford to buy vessels at normal                      competition COM/T/A/95 ,
    market rates,
                                                                       — in the further alternative, order the Commission to pay
— the Commission has failed to analyse the impact of the                   her damages on account of the erroneous and prejudicial
    contested aid on competition in the cruise travel market               nature of the contested decisions; the applicant reserves
    in the Community and between Community shipyards .                     the right to submit later on in the proceedings detailed
    As a question of fact, this aid has had a significant                  calculations of the loss suffered by her,
    adverse impact on the applicants ' operations,
                                                                       — order the defendant to pay the costs .
— the decision has infringed the applicants' rights of
    defence and has failed to take              account of the
    Commission 's duties of impartiality, diligence, care and          Pleas in law and main arguments adduced in support:
    good administration .
                                                                       The applicant, formerly a member of the temporary staff in
                                                                       category A and currently a member, in the same category, of
                                                                       the auxiliary staff of the Commission , contests the decision
                                                                       of the selection board in internal competition COM/T/A/95
                                                                       refusing to admit her to the tests in that competition on the
                                                                       ground that she was not a member of the temporary staff on
                                                                       the final date for submission of applications, as required by
                                                                       the notice of competition .
Action brought on 10 November 1995 by Claudine
Petit-Laurent against the Commission of the European
                            Communities                                The applicant relies, in support of her claims , on the same
                                                                       pleas and arguments as those invoked in Case T-207/95 .
                          Case T-211 /95 )
                           ( 95/C 351 /39 )
                 (Language of the case: French)
An action against the Commission of the European
Communities was brought before the Court of First                             Removal from the register of Case T-526/93 ( )
Instance of the European Communities on 10 November
                                                                                                 ( 95/C 351 /40 )
1995 by Claudine Petit-Laurent, residing in Brussels
( Belgium ), represented by Marc-Albert Lucas , of the Liege
Bar, with an address for service in Luxembourg at the
Chambers of Evelyne Korn, 21 Rue de Nassau .                                           (Language of the case: Lnglish)
The applicant claims that the Court should :                           By order of 10 November 1995 the President of the First
                                                                       Chamber ( Extended Composition ) of the Court of First
                                                                       Instance of the European Communities ordered the removal
— principally :                                                        from the register of Case T-526/93 : Matthew Fogarty,
                                                                       James Eager, Denis O'Halloran , John Joseph Dillon ,
     ( a ) declare notice of competition COM/T/A/95 illegal            John Joe Lynch, Mary and Martin McMahon , Joseph
           and inapplicable to the applicant;                          Fitzsimmons and Howard McCollum v. Council of the