CELEX: C1996/064/35
Language: en
Date: 1996-03-02 00:00:00
Title: Action brought on 15 December 1995 by S. Lehrfreund Limited against Council of the European Union and Commission of the European Communities (Case T-228/95)

2 . 3 . 96            EN                  Official Journal of the European Communities                                     No C 64/ 17
infringements alleged by the Commission were found not to            — order the Council and/or Commission to pay the costs
exist by the Court which annulled in whole or in part the                  incurred by the applicant in making this application .
fines imposed by the Commission . Pursuant to that
judgment, the applicants requested the Commission to
                                                                     Pleas in law and main arguments adduced in support:
reimburse the fines paid by them . By the contested letter of
4 October 1995 signed by the Commissioner for
Competition, the Commission refused on the ground that               The applicant is a small family company which has been
the decision imposing the fines was still standing with regard       carrying on the business of a fur merchant since it was
to the applicants.                                                   established in the United Kingdom in 1963 , the great
                                                                     majority of the applicant's business ( about 80% ) depends
                                                                     on the use of fur pelts originating in and imported from the
The applicants submit that the effect of the Court's                 United States of America and Canada .
annulment of a Community Act is that the Act is void erga
omnes and ex tunc. The institution is thereafter required to
                                                                     Article 3 ( 1 ) of Council Regulation ( EEC ) No 3254/91 of
consider or reconsider the position of all interested persons
                                                                     4 November 1991 prohibiting the use of leghold traps in the
in the light of the grounds and operative part of the Court's
                                                                     Community and the introduction into the Community of
judgment. The institution is also obliged to effect a restitutio
                                                                     pelts and manufactured goods of certain wild animal species
in integrum. This requires the restoration of the status quo
                                                                     originating in countries which catch them by means of
ante and the restitution of any unjust enrichment arising
                                                                     leghold traps or trapping methods which do not meet
from the invalid Act, and includes a duty to pay interest on
                                                                     international humane trapping standards ( OJ No L 308 ,
any monies held pursuant to the invalid Act.
                                                                     1991 , p. 1 ) purports to prohibit the import into the
                                                                     Community of pelts of certain species ( including musk rat )
In the light of the Court's judgment, Articles 1(1 ) and 1 ( 2 )     originating in certain third countries ( the 'import ban'). The
of the Wood Pulp Decision do not provide a lawful basis for          wording of Article 3(1 ), taken literally, suggests that that
the imposition of fines on any of the addressees referred to in      ban will have effect as from 1 January 1996 , and will apply
Articles 1 ( 1 ) or 1 ( 2 ). Any fines paid in respect of the        to fur pelts from all third countries . The mere prospect of
allegations contained in Articles 1(1 ) and 1 ( 2 ) cannot be        such a ban and the uncertainty of the manner of its
lawfully held by the Commission . The fines must therefore           implementation have already caused serious and continuing
be repaid with interest at a rate which reflects the value to        financial loss to the applicant. As and when the ban takes
the Commission of possession over a period of 10 years of            effect ( whether on 1 January 1996 or later ), the ban will
the fines paid by the Swedish addressees . Only thus can the         cause even more severe financial loss, of a nature and extent
status quo ante be restored.                                         that is likely to be such as effectively to destroy the
                                                                     applicant's business .
                                                                     The applicant submits that such losses are and will be the
                                                                     result of unlawful conduct on the part of the Council and/or
                                                                     Commission :
                                                                     ( a ) the Commission has acted unlawfully in adopting and
Action brought on 15 December 1995 by S. Lehrfreund                          implementing the import ban under Regulation ( EEC )
Limited against Council of the European Union and                            No 3254/91 in that:
          Commission of the European Communities
                        Case T-228/95 )                                          ( i ) the Council lacked competence under the EC
                            96/C 64/35 )                                               Treaty to adopt the import ban in Regulation
                                                                                       ( EEC ) No 3254/91 ;
                (Language of the case: English)                                ( ii ) the import ban in Regulation ( EEC ) No 3254/91
                                                                                       is contrary to the principle of proportionality;
 An action against the Council of the European Union and
 the Commission of the European Communities was brought                      ( iii ) the import ban in Regulation ( EEC ) No 3254/91
 before the Court of First Instance of the European                                    was at the time of its adoption in breach of the
 Communities on 15 December 1995 by S. Lehrfreund                                      GATT and is now in breach of the WTO
 Limited, represented by Nicholas Forwood QC and Mark                                  Agreement.
 Hoskins, Barrister, with an address for service in
 Luxembourg at the Chambers of Thill & Pauly, 1 1 Avenue              ( b ) the Commission has unlawfully failed to adopt the
 de la Gare, L-1611 .                                                        measures necessary to implement Regulation ( EEC )
                                                                             No 3254/91 , which would have identified third
                                                                             countries from which fur pelts could be imported and
 The applicant claims that the Court should :                                the necessary procedures for certifying the origin of
                                                                             such pelts;
 — order that the Council and/or Commission is liable in
      damages to the applicant under Articles 178 and 215 of          ( c ) the acts and omissions of the Commission and/or
      the EC Treaty, the quantum of such damages to be                        Council having created a situation of legal uncertainty
      assessed, and                                                          as to the scope and effective date of the import ban,
 ---pagebreak--- No C 64/ 18              EN                 Official Journal of the European Communities                                       2 . 3 . 96
        those institutions have unlawfully failed to take              years from the entry into force of Regulation ( EC )
        appropriate and timely steps to eradicate such                 No 2380/95 is invalid . In its submission, the second
        uncertainty .                                                  paragraph of Article 3 of Regulation ( EC ) No 2380/95 is
                                                                       invalid on the following grounds :
The loss which the applicant has suffered and will suffer falls
into two categories :
                                                                       ( a ) infringement of Article 15 ( 1 ) of Regulation ( EEC )
( a ) 'current loss' — the loss of turnover and profit that is               No 2423/88 : under this provision, anti-dumping duties
        already being sustained as a result of a current fall in             are to remain valid not only for five years from their
        demand for fur pelts and related products, in the                    entry into force, but for five years from the date on
        expectation that such pelts will or may not be able to be            which they were last modified or confirmed . That is a
        imported after 1 January 1996 ;                                      mandatory provision from which the Council may not
                                                                             derogate, and indeed has not derogated in its practice to
( b ) 'future loss' — the future losses of turnover and profit               date. The Regulation does not state any reason why
        that will be suffered as and when any import ban takes               there should be a derogation in favour of plain paper
        effect .                                                             photocopiers with a speed of more than 75 copies per
                                                                             minute ( Article 190 , EC Treaty );
                                                                       ( b ) in the alternative, manifest error of assessment in the
                                                                             shortening of the five-year period to two years : the
Action brought on 19 December 1995 by the Committee of                       restriction of the validity of Regulation ( EC )
European Copier Manufacturers ( Cecom ) against the                          No 2380/95 to two years clearly contradicts the factual
                  Council of the European Union
                                                                             findings by the Community institutions in the
                                                                             investigation proceedings . Significant dumping was
                          ( Case T-232/95 )                                  established, as was significant injury to the Community
                             ( 96/C 64/36 )                                  industry and the existence of a Community interest in
                                                                             continuing anti-dumping protection . Five years of
                  (Language of the case: German)                             anti-dumping measures are necessary in order to
                                                                             counteract the harmful dumping. Regulation ( EC )
                                                                             No 2380/95 does not state why in the case of plain
An action against the Council of the European Union was                      paper photocopiers with a speed of over 75 copies per
brought before the Court of First Instance of the European                   minute, which are protected against harmful dumping
Communities on 19 December 1995 by the Committee of                          for the first time by that Regulation, the protection is to
European Copier Manufacturers ( Cecom ) of Cologne,                          last only two years ( Article 190 , EC Treaty );
represented by Dietrich Ehle and Volker Schiller
( Rechtsanwalte ) of Cologne, with an address for service in
Luxembourg at the Chambers of Marc Lucius                              ( c ) disregard of the structure of the basic anti-dumping
( Rechtsanwalt), 6 Rue Michel Welter .                                       Regulation, especially the balance of rights and duties
                                                                             between the Community industry which has been
The applicant claims that the Court should :                                 injured and the dumping exporters and participating
                                                                             importers : when harmful dumping is established , the
— annul the second paragraph of Article 3 of Regulation                      rules require the Community industry to be protected
      ( EC ) No 2380/95 of 2 October 1995 ( OJ No L 244 ,                    for five years . That is balanced by Article 11 ( 3 ) of
      1995 , p. 1 ) imposing a definitive anti-dumping duty on               Regulation ( EC ) No 3283/94 , which gives exporters
      imports of plain paper photocopiers originating in Japan               and importers the possibility of requesting a review,
      in so far as it provides that the Regulation is to expire              and by Article 11 ( 8 ) of the same Regulation, whereby
      two years after its entry into force,                                  importers may request a refund of anti-dumping duties
                                                                             in certain circumstances;
— in the event of the claim being successful, and in so far as
      may be necessary, order that the anti-dumping duties
      introduced by Article 1 of Regulation ( EC ) No 2380/95          ( d ) the Community industry is prevented from effectively
      are to remain in force, even after the expiry of the                   defending and asserting its rights : if the validity of
      two-year period, until the relevant institutions have                  anti-dumping measures is limited to two years from
      taken the measures required by the judgment of the                     their entry into force, the injured Community industry
      Court,                                                                 is clearly hindered from making appropriate
                                                                             and successful use of its rights under Article 12
— order the Chamber to pay the costs of these                                 ( effects of anti-dumping duties ) and Article 13
      proceedings.                                                            ( anti-circumvention ) of Regulation ( EC ) No
                                                                              3283/94 .
 Pleas in law and main arguments adduced in support:
The applicant maintains that the provision whereby the
 anti-dumping duties on photocopiers are to expire after two