Appeal brought on 24 November 2010 by Usha Martin Ltd against the judgment of the General Court (Fifth Chamber) delivered on 9 September 2010 in Case T-119/06: Usha Martin Ltd v Council of the European Union, European Commission

(Case C-552/10 P)

2011/C 55/31

Language of the case: English

Parties

Appellant: Usha Martin Ltd (represented by: V. Akritidis, Δικηγόρος, Y. Melin, avocat, E. Petritsi, Δικηγόρος)

Other parties to the proceedings: Council of the European Union, European Commission

Form of order sought

The appellant claims that the Court should:

Pleas in law and main arguments

The appellant submits that the General Court committed errors in law at paragraphs 44 to 56 of the contested Judgement, in particular in finding that the lawfulness of the Commission Decision withdrawing the acceptance of an undertaking cannot, as such, be called into question by reference to the principle of proportionality by erroneously holding that: (i) the proportionality principle does not apply to the decision to withdraw an undertaking because such a decision is equivalent to the imposition of duties per se; and (ii) any breach is sufficient in itself to trigger withdrawal without such withdrawal being subject to the proportionality principle test.

The appellant also submits that the General Court erroneously assessed the facts of the case and heavily distorted them when it held that ‘it is common ground between the parties that there was no compliance with the undertaking’ insofar as the said statement erroneously implies admittance by the Appellant of a breach of the undertaking, quod non, in the sense of Article 8 of the basic anti-dumping Regulation.

The applicant submits that the General Court erroneously concluded that the lawfulness of the withdrawal of the undertaking cannot be called into question by reference to the principle of proportionality either on the basis that any breach is sufficient to trigger withdrawal or by associating the withdrawal measure with a measure of imposing duties. In effect, the General Court erroneously considers that the principle of proportionality never applies at the level of withdrawal of an undertaking and fails to apply the test of ‘manifest inappropriateness’ of a measure, contrary to the established case law of the European Courts and contrary to the introductory recitals of the contested Judgement in particular paragraphs 44 to 47. The General Court erroneously concludes that withdrawal of an undertaking per se cannot be called into question as regards its lawfulness by virtue of the general principle of proportionality. In addition, by erroneously holding that there was common ground between the parties that there was no compliance with the undertaking, implying that there was breach of an undertaking in the sense of Article 8(9) of the basic anti-dumping Regulation, the General Court has manifestly distorted the facts of the case, as argued by the Appellant, and has therefore, erred in law by erroneously appraising the arguments of the Appellant.

(1)  OJ L 22, p. 54

(2)  OJ L 22, p. 1