CELEX: C1998/166/10
Language: en
Date: 1998-05-30 00:00:00
Title: Action brought on 24 March 1998 by the Commission of the European Communities against the Kingdom of Belgium (Case C-79/98)

30.5.98               EN                   Official Journal of the European Communities                                    C 166/7
Ð order such other or further relief as may be lawful or              Action brought on 24 March 1998 by the Commission of
     equitable; and                                                       the European Communities against the Kingdom of
                                                                                                  Belgium
                                                                                             (Case C-79/98)
Ð order the Council to pay the Appellant's costs.
                                                                                              (98/C 166/10)
Pleas in law and main arguments:                                      An action against the Kingdom of Belgium was brought
                                                                      before the Court of Justice of the European Communities
                                                                      on 24 March 1998 by the Commission of the European
The Appellant submits that the judgment of the Court of               Communities, represented by Götz zur Hausen, Legal
First Instance contains fundamental errors of law and                 Adviser, acting as Agent, with an address for service in
must be set aside.                                                    Luxembourg at the office of Carlos Gómez de la Cruz,
                                                                      Wagner Centre, Kirchberg.
First, the Court of First Instance erred in finding that              The applicant claims that the Court should:
patent-protection in the exporter's domestic market alone
is irrelevant to the price comparability requirement
contained in Article 2(3) of Council Regulation (EEC)                 Ð Declare that, by failing to adopt the laws, regulations
No 2423/88 (4), hereinafter the Basic Regulation'. The                   or administrative provisions necessary to comply with
ordinary meaning of the word comparable' within                          Commission Directive 94/69/EC of 19 December 1994
Article 2(3), the overall scheme of the Basic Regulation                  adapting to technical progress for the twenty-first time
and of the process for establishing and comparing normal                  Council Directive 67/548/EEC on the approximation
value and export price, GATT law, U.S. law, and the aims                  of laws, regulations and administrative provisions
and objectives of anti-dumping law and of intellectual                    relating to the classification, packaging and labelling
property law all lead to the conclusion that patent-                      of dangerous substances (1), the Kingdom of Belgium
protection is a matter affecting price comparability within               has failed to fulfil its obligations under that directive;
the meaning of Article 2(3) and that normal value may                     and
not be established on the basis of actual domestic prices
when those prices (but not export prices) are the result of           Ð Order the Kingdom of Belgium to pay the costs.
patent-protected sales.
                                                                      Pleas in law and main arguments:
Second, the Court of First Instance erred in finding that a
failure by the Commission to grant any disclosure of its              The pleas in law and main arguments are analogous with
determinations prior to the imposition of provisional                 those submitted in Case C-66/98 (2); the time-limit
duties is a defect which can be remedied after the                    provided for in the directive expired on 1 September 1996.
imposition of provisional duties and does not, therefore,
affect the validity of the definitive collection of the               (1) OJ L 381 of 31.12.1994, p. 1.
provisional duties. The fundamental principles of                     (2) OJ C 137 of 2.5.1998, p. 12.
Community law Ð in particular the right to be heard Ð
and the practice of the Commission in other cases required
the Commission to disclose essential facts and
considerations to the Appellant prior to the adoption of
the Provisional Duty Regulation. The Commission's
failure to make timely disclosure of such matters to the
                                                                      Reference for a preliminary ruling by the Sù- og Handels-
Appellant amounted to a breach of this fundamental
                                                                      ret by order of 18 March 1998 in the case of 3Com
principle as well as to discrimination. This fundamental
                                                                      Corporation v Bluecom Danmark A/S and KISS Nordic
breach rendered the Provisional Duty Regulation invalid,
                                                                                                    A/S
and this defect in the Provisional Duty could not be and
was not remedied in the Definitive Duty Regulation.                                          (Case C-80/98)
                                                                                              (98/C 166/11)
(1) OJ C 291 of 8.11.1991, p. 8.
(2) OJ C 291 of 8.11.1991, p. 9.
(3) Council Regulation (EEC) No 1391/91 of 27 May 1991                Reference has been made to the Court of Justice of the
    imposing a definitive anti-dumping duty on imports of             European Communities by order of 18 March 1998 from
    aspartame originating in Japan and the United States of           the Sù- og Handelsret (Maritime and Commercial Court),
    America (OJ L 134 of 29.5.1991, p. 1).                            which was received at the Court Registry on 25 March
(4) Council Regulation (EEC) No 2423/88 of 11 July 1988 on            1998, for a preliminary ruling in the case of 3Com
    protection against dumped or subsidized imports from
                                                                      Corporation v Bluecom Danmark A/S and KISS Nordic
    countries not members of the European Economic Community
    (OJ L 209 of 2.8.1988, p. 1).                                     A/S on the following question:
                                                                      Does it follow from Article 7(1) of First Council Directive
                                                                      89/104/EEC of 21 December 1988 to approximate the