CELEX: C1998/166/09
Language: en
Date: 1998-05-30 00:00:00
Title: Appeal brought on 20 March 1998 by the NutraSweet Company against the judgment delivered on 18 December 1997 by the Fifth Chamber (Extended Composition) of the Court of First Instance of the European Communities in joined Cases T-159/94 between Ajinomoto Co. Inc. and the Council of the European Union, supported by the Commission of the European Communities, and T-160/94 between The NutraSweet Company and the Council of the European Union, supported by the Commission of the European Communities (Case C-77/98 P)

C 166/6              EN                 Official Journal of the European Communities                                    30.5.98
Ð in the alternative, quash the judgment of the Court of           and this defect in the Provisional Duty could not be and
    First Instance in joined cases T-159/94 and T-160/94           was not remedied in the Definitive Duty Regulation.
    in so far as it does not annul Article 2 of Council
    Regulation (EEC) No 1391/91 of 27 May 1991                     (1) OJ C 291 of 8.11.1991, p. 8.
    ordering the definitive collection of the amounts              (2) OJ C 291 of 8.11.1991, p. 9.
    secured by way of provisional anti-dumping duty and            (3) Council Regulation (EEC) No 1391/91 of 27 May 1991
    annul Article 2 of that Regulation in so far as it                 imposing a definitive anti-dumping duty on imports of
    applies to the Appellant;                                          aspartame originating in Japan and the United States of
                                                                       America (OJ L 134 of 29.5.1991, p. 1).
                                                                   (4) Council Regulation (EEC) No 2423/88 of 11 July 1988 on
Ð order such other or further relief as may be lawful or               protection against dumped or subsidized imports from
    equitable; and                                                     countries not members of the European Economic Community
                                                                       (OJ L 209 of 2.8.1988, p. 1).
Ð order the Council to pay the Appellant's costs.
Pleas in law and main arguments:
The Appellant submits that the judgment of the Court of            Appeal brought on 20 March 1998 by the NutraSweet
First Instance contains fundamental errors of law and              Company against the judgment delivered on 18 December
must be set aside.                                                 1997 by the Fifth Chamber (Extended Composition) of
                                                                   the Court of First Instance of the European Communities
First, the Court of First Instance erred in finding that           in joined Cases T-159/94 (1) between Ajinomoto Co. Inc.
patent-protection in the exporter's domestic market alone          and the Council of the European Union, supported by the
is irrelevant to the price comparability requirement               Commission of the European Communities, and T-160/
contained in Article 2(3) of Council Regulation (EEC)              94 (2) between The NutraSweet Company and the Council
No 2423/88 (4), hereinafter the Basic Regulation'. The            of the European Union, supported by the Commission of
ordinary meaning of the word comparable' within                                      the European Communities
Article 2(3), the overall scheme of the Basic Regulation                                   (Case C-77/98 P)
and of the process for establishing and comparing normal
value and export price, GATT law, U.S. law, and the aims                                     (98/C 166/09)
and objectives of anti-dumping law and of intellectual
property law all lead to the conclusion that patent-
                                                                   An appeal against the judgment delivered on 18 December
protection is a matter affecting price comparability within
                                                                   1997 by the Fifth Chamber (Extended Composition) of
the meaning of Article 2(3) and that normal value may
                                                                   the Court of First Instance of the European Communities
not be established on the basis of actual domestic prices
                                                                   in joined Cases T-159/94 between Ajinomoto Co. Inc. and
when those prices (but not export prices) are the result of
                                                                   the Council of the European Union, supported by the
patent-protected sales.
                                                                   Commission of the European Communities, and T-160/94
                                                                   between The NutraSweet Company and the Council of the
Second, the Court of First Instance erred, for the same            European Union, supported by the Commission of the
reasons, in basing normal value for Japanese origin                European Communities, was brought before the Court of
aspartame on U.S. patent-protected prices. Articles 2(3)           Justice of the European Communities on 20 March 1998
and 2(6) of the Basic Regulation preclude the                      by The NutraSweet Company, of 1751, Lake Cook Road,
determination of normal value on the basis of actual               Deerfield, Illinois 60015, United States of America,
prices in a country (other than the country of origin) from        represented by Jean-FrancËois Bellis, of the Brussels Bar,
which a product is shipped to the Community when there             and Fabrizio Di Gianni, of the Rome Bar, of Van Bael &
is no comparable price' in that intermediate market.              Bellis, Brussels, with an address for service in Luxembourg
Patent-protected prices are not comparable prices.                 at the Chambers of Jacques Loesch, 11, Rue Goethe.
Third, the Court of First Instance erred in finding that a         The Appellant claims that the Court should:
failure by the Commission to grant any disclosure of its
determinations prior to the imposition of provisional
                                                                   Ð quash the judgment of the Court of First Instance in
duties is a defect which can be remedied after the
                                                                        joined cases T-159/94 and T-160/94 and annul Council
imposition of provisional duties and does not, therefore,
                                                                        Regulation (EEC) No 1391/91 (3) of 27 May 1991 in
affect the validity of the defintive collection of the
                                                                        so far as it applies to the Appellant;
provisional duties. The fundamental principles of
Community law Ð in particular the right to be heard Ð
and the practice of the Commission in other cases required         Ð in the alternative, quash the judgment of the Court of
the Commission to disclose essential facts and                          First Instance in joined cases T-159/94 and T-160/94
considerations to the Appellant prior to the adoption of                in so far as it does not annul Article 2 of Council
the Provisional Duty Regulation. The Commission's                       Regulation (EEC) No 1391/91 of 27 May 1991
failure to make timely disclosure of such matters to the                ordering the definitive collection of the amounts
Appellant amounted to a breach of this fundamental                      secured by way of provisional anti-dumping duty and
principle as well as to discrimination. This fundamental                annul Article 2 of that Regulation in so far as it
breach rendered the Provisional Duty Regulation invalid,                applies to the Appellant;
 ---pagebreak--- 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