CELEX: C1996/180/80
Language: en
Date: 1996-06-22 00:00:00
Title: Action brought on 27 March 1996 by Whirlpool Sweden AB and Whirlpool SMC Microwave Products Co., Ltd, against the Council of the European Union (Case T-46/96)

22 . 6 . 96           EN                  Official Journal of the European Communities                               No C 180/31
compensation for damage . It claims that the delay in taking         The applicants claim that the Court should:
over the delivery of oil caused not only the damage
acknowledged in the present case by the Commission but
also subsequent and extensive damage which the                       — annul Articles 1 and 2 of Council Regulation ( EC )
Commission has unlawfully failed to consider . In particular,            No 5/96 of 22 December 1995 imposing definitive
the Commission has not acknowledged : ( a ) loss of profits              anti-dumping duties on imports of microwave ovens
since the applicant did not have available the security lodged           originating in the People's Republic of China, the
in favour of the Commission. The security could not be                   Republic of Korea, Malaysia and Thailand, insofar as it
released during the whole period of the unlawful delay; ( b )            applies to the applicants; and
interest at the statutory rate and currency devaluation from
the moment the damage suffered by the applicant occurred .           — order the defendant institution to bear the costs of the
The applicant, after having sought in vain to reach an                   proceedings pursuant to Article 7 of the Rules of
understanding with the Commission, is now constrained to                 Procedure of the Court of First Instance .
bring an action under Articles 178 and 215 of the EC Treaty
in order to obtain full compensation for such harm.
                                                                     Pleas in law and main arguments:
Moreover, the applicant points out that the Commission
specifically refused to acknowledge part of the damage               The applicants, two companies incorporated under Swedish
complained of by a decision of the institution, commu­               and Hong-Kong law respectively, belonging both to the
nicated to the applicant by the aforementioned letter of             multinational Whirlpool Corporation, the world's leading
16 January 1996 . Thus, the applicant also considered it             producer and marketer of quality major home appliances,
appropriate to bring an action under Article 173 of the              challenge Regulation ( EC ) No 5/96 on the following
Treaty for partial annulment against the decision itself. The        grounds :
applicant considers that the restriction placed on the extent
of the damage acknowledged is not justified on any objective         Violation of the basic Regulation and Anti-dumping Code.
or valid ground . The Commission has committed in the                The applicants submit on this regard that no causal link
present case a manifest error of assessment. It follows that         between imports from the countries concerned and an injury
the Commission, by refusing to acknowledge part of the               of the Community industry can be found . In the alternative ,
damage suffered by the applicant, has misused its powers,            should such a link be found, then an apportion should have
thus vitiating the lawfulness of the decision .                      been made by the Community institutions . Since no such
                                                                     apportion was made, the Community institutions would
                                                                     have violated Articles 4 ( 1 ) and 13 ( 3 ) of the basic
(') OJ No L 265 , 15 . 10 . 1994 .                                   Regulation and Articles 3.5 and II . 1 of the Anti-dumping
                                                                     Code .
                                                                     Consequently, by failing to conduct an appropriate inquiry,
                                                                     the Community institutions did not correctly apply the legal
                                                                     standard for the assessment of causation. In any case,
                                                                     Whirlpool results should have been taken into account
                                                                     when assessing injury.
                                                                     Infringement of an essential procedural requirement,
                                                                     insofar as the Community institutions breached the rights of
Action brought on 27 March 1996 by Whirlpool Sweden                  defence and the right to a fair hearing in the conduct of the
AB and Whirlpool SMC Microwave Products Co., Ltd,                    proceeding leading to the adoption of the contested
         against the Council of the European Union                   Regulation .
                        ( Case T-46/96 )
                          ( 96/C 180/80 )                            Misuse ofpower. The Community institutions misused their
                                                                     powers by failing to exert their delegated powers fairly and
                                                                     impartially, with due respect for procedural rights and
                                                                     general principles of Community law.
               (Language of the case: English)
                                                                     Infringement of Article 190 of the EC Treaty, inasmuch as
                                                                     the inaccurate, incomplete and contradictory statement of
An action against the Council of the European Union was              reasons presented by the Community institutions makes it
brought before the Court of First Instance of the European           impossible to know the real and complete reasons for their
Communities on 27 March 1996 by Whirlpool Sweden AB                  decisions .
and Whirlpool SMC Microwave Products Co., Ltd .,
represented by Mr Onno W Brouwer and Mr Pierre
Larouche with an address for service in Luxembourg at the
Chambers of Loesch & Wolter, 11 , rue Goethe .