Action brought on 30 November 2004 by HEG Limited and Graphite India Limited against the Council of the European Union

(Case T-462/04)

(2005/C 69/34)

Language of the case: English

An action against the Council of the European Union was brought before the Court of First Instance of the European Communities on 30 November 2004 by HEG Limited, New Delhi, India and Graphite India Limited, Kolkata, India, represented by Dr K. Adamantopoulos, lawyer and J. Branton, Solicitor.

The applicants claim that the Court should:

Pleas in law and main arguments

Following complaints introduced on behalf of Community producers of graphite electrodes, the Commission initiated parallel anti-subsidy and anti-dumping proceedings against imports of the product concerned from India. These proceedings led to the adoption of the contested regulation.

The applicants are two Indian companies which manufacture and export the product concerned to the European Union. In support of their application they submit first of all that the Commission services and finally the Council failed to investigate other obvious sources of injury, namely dumped imports from other third countries, even when presented with strong evidence of them by Indian exporters. On this basis the applicants invoke a violation of Article 9 paragraph 5 of Regulation 384/96 (3) and of Article 9 paragraph 2 of the Agreement on Implementation of Article VI of the GATT (Anti-dumping agreement), a violation of the principle of non-discrimination and of fundamental procedural requirements and a manifest error of assessment.

The applicants further submit that both contested regulations are vitiated by the infringement of fundamental procedural requirements provided by Regulation 2026/97 (4) and Regulation 384/96 respectively as well as by the Anti-dumping agreement and the Agreement on subsidies and countervailing measures, having imposed anti-dumping and countervailing measures on the basis of a Community of 25 Member States even though the investigation was initiated and conducted on the basis of a 15 Member States.

The applicants also contend that Regulation 1628/2004 imposes countervailing duties in inappropriate amounts in respect of the Indian DEPB post-export scheme thus violating Regulation 2026/97, the Agreement on subsidies and countervailing measures and the principle of proportionality, committing a manifest error of assessment and breaching fundamental procedural requirements.

The applicants also invoke violations of Regulations 2026/97 and 384/96 respectively, of the anti-dumping agreement and the Agreement on subsidies and countervailing measures, as well as a manifest error of assessment, contending that the contested measures base material injury determination on data made unreliable by the existence of anti-competitive market sharing and price fixing agreements between the members of the Community industry, confirmed and sanctioned by a decision of the Commission itself.

Finally, the applicants contend that the contested measures respectively violate Article 3 paragraph 2 of Regulation 384/96 and Article 8 paragraph 7 of Regulation 2026/97 in failing to remove the effects of other factors in determining its final injury analysis and thereby attributing injury caused by other factors to Indian imports.

(1)  OJ L 295, 18.9.2004, p. 4.

(2)  OJ L 295, 18.9.2004, p. 10.

(3)  Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community, OJ L 56, 6.3.1996, p. 1.

(4)  Council Regulation (EC) No 2026/97 of 6 October 1997 on protection against subsidized imports from countries not members of the European Community, OJ L 288, 21.10.1997, p. 1.