CELEX: C1996/180/79
Language: en
Date: 1996-06-22 00:00:00
Title: Action brought on 26 March 1996 by Oleifici Italiani SpA against the Commission of the European Communities (Case T-44/96)

No C 180/30          EN                  Official Journal of the European Communities                                     22 . 6 . 96
 The applicant claims that the Court should :                        Action brought on 26 March 1996 by Oleifici Italiani SpA
                                                                        against the Commission of the European Communities
— annul the decision of the Commission of 20 December
                                                                                             ( Case T-44/96 )
     1995 ( Case REM 5/95 ),
                                                                                               ( 96/C 180/79 )
— order the defendant to pay the costs .
                                                                                      (Language of the case: Italian)
 Pleas in law and main arguments
The applicant, an undertaking engaged for many years in the          An action against the Commission of the European
 importation of high quality beef ('Hilton ' beef) from              Communities was brought before the Court of First
 Argentina , contests the Commission's decision of                   Instance of the European Communities on 26 March 1996
 20 December 1 995 ( Case REM 5/95 ), notified by the                by Oleifici Italiani SpA, whose registered office is at Ostuni
 Hauptzollamt ( Principal Customs Office ), Diisseldorf, by          ( BR ) ( Italy ), represented by Antonio Tizzano and
which the Commission refused to refund import levies on              Gianmichele Roberti, both of the Naples Bar, with an
 Hilton    beef   from    Argentina     amounting     to   DM        address for service at 36 Place du Grand Sablon,
 11 422 736,45 .                                                     Brussels .
The applicant maintains in particular that the Commission's
decision is founded on an incorrect legal basis . The correct        The applicant claims that the Court should :
legal basis on which the decision should have been founded
was not Article 13 of Regulation ( EEC ) No 1430/79 but
Article 239 of Regulation ( EEC ) No 2913/92 ( the Customs           — annul partially the Commission's decision contained in
 Code ).                                                                  the letter from Mr M. Jacquiot, the Director of
                                                                          Directorate General Agriculture ( DG VI ) — Directorate
The decision breaches essential procedural requirements,                  G, European Agricultural Guidance and Guarantee
since in the present case the applicant was not granted any               Fund ( EAGGF ) — of 16 January 1996 ( Case No
direct right to be heard or to vindicate its position in the              VI/003107 ), in so far as it refuses to compensate Oleifici
remission procedure ( analogous to inter partes proceedings )             Italiani for part of the damage caused by the
 before the Commission .                                                  Commission by the delay in the take-over of the lots of
                                                                          olive oil awarded on the basis of Regulation ( EC ) No
In its interpretation and application of the term                         2494/94 of 14 October 1994 ( ! ),
'circumstances ' within the meaning of Article 239 of the
Customs Code, the Commission committed a number of                   — order the harm suffered by the applicant as a consequence
serious and manifest errors of assessment, in so far as it                of the alleged unlawful conduct to be made good by the
appraised the arguments advanced in the application at all                Commission ,
and provided a statement of the grounds for its decision
refusing the same . In particular, the Commission failed to
appreciate, or incorrectly appreciated, the serious                 — order the Commission to pay the costs .
dereliction of duty on the part of the competent Argentinian
authorities and/or the Argentinian Government in their
capacity as guarantor of the system for issuing and                  Pleas in law and main arguments:
monitoring certificates of authenticity in Argentina , as well
as its own serious dereliction of duty with regard to the            In the context of the tendering procedure for the supply of
implementation and supervision of the Community tariff               olive oil to the people of Georgia and Armenia, opened by
quotas within the Community . As a result of those                   Regulation ( EC ) No 2494/94 , the Commission awarded to
derelictions of duty, it had been possible to falsify                the applicant the supply of three of the consignments of olive
certificates of authenticity even before 1991 . The applicant        oil which were the object of the call for tenders . Following
should not, as an importer, be made to bear a risk which had        the award, the applicant fulfilled all the obligations relating
been created only as a result of the derelictions of duty, and      to the supply in question . However, the subsequent
which it was powerless to prevent.                                  take-over of the goods was delayed as a result of the
                                                                     negligent organization by the Commission of the
The decision breaches the principle of proportionality, since       embarkation and transport operations . By letter of 22 May
the Commission was in a position, having been empowered              1995 the applicant requested compensation for damage
so to do by the Council, to reduce, with regard to Argentina ,      suffered ( vehicles not able to be used, storage and insurance
the quota in respect of quantities of Hilton beef imported on       costs, cost of the bank guarantee and damage arising from
the basis of falsified certificates of authenticity, but only       the failure to use the appropriate lines of credit), for a total
partially availed itself of that option. The principle of           amounting to Lit 1 062 880 216 . On 29 September 1995 ,
proportionality precludes the Commission from                       following that request for compensation, the applicant
unjustifiably and unnecessarily imposing excessive import           received from the Commission credit of Lit 444 908 307. By
levies on the applicant in its capacity as a bona fide              a letter of 16 January 1 996 , the Commission sent the
importer .                                                          applicant a list of the expenditure which it agreed to
                                                                    compensate. The applicant points out that its dispute with
                                                                    the Commission essentially concerns the question of
 ---pagebreak--- 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 .