Judgment_paragraph 62 · International Potash Company v Council of the European Union (T-87/98)

62Relying on the case-law of the Court of First Instance (Case T-85/94 Branco v Commission [1995] ECR II-45, paragraph 32; and Case T-166/94 Koyo Seiko v Council [1995] ECR II-2129, paragraph 103), the applicant claims first that the Council infringed the obligation laid down in Article 190 of the Treaty by failing to explain adequately in the contested regulation why it was necessary to adopt a fixed duty combined with a variable duty. The applicant stresses that in recital 42 in the preamble to Regulation No 643/94 the Council had provided ample reasoning for its decision to alter the form of the duty originally imposed and to combine a fixed duty with a variable duty (see paragraph 5 above). By contrast, the contested regulation fails to explain why the same combination of a variable duty and a fixed duty was still necessary when that regulation was adopted. The retention of that combination of two duties was based solely on the ground that ‘the dumping margin has changed little since the last examination’ (recital 78 in the preamble to the contested regulation). The applicant adds that in the definitive disclosure document (see paragraph 8 above), the Commission had given a different explanation for the retention of this form of measures, stating that ‘it has been alleged that circumvention of the measures was still taking place’ (P. 9).

International Potash Company v Council of the European Union (T-87/98)

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