17DEC ESP INDONESIA

21DEC

BAS

This report provides a professional analysis of the potential judicial review opportunities involving the Madrid Bar Association, hereafter referred to as ICAM, and the relevant regulatory bodies in Spain. As requested, this analysis assumes that Spanish law aligns in substance with United Kingdom law, specifically the principles of the Competition Act 1998 and the standards of judicial review.

Introduction to the Wider Public Interest and Competition Law Framework

The following opportunities are evaluated through the lens of the Wider Public Interest, or WPI, balancing competition law goals such as lower prices and innovation against non-economic objectives like professional quality and consumer protection. A central theme in these opportunities is the doctrine of regulatory capture, where professional bodies may implement rules that benefit the profession at the expense of the consumer.

Judicial Review Opportunity One: ICAM Professional Fee Guidelines and Tariffs

Grounds for Review:

This opportunity concerns the legality of the fee guidelines issued by ICAM. Under both EU law and the equivalent Spanish competition framework, professional associations are considered undertakings when they engage in economic activity. The guidelines, even if framed as orientative, may constitute horizontal price-fixing or a decision by an association of undertakings that restricts competition.

Custom Balancing Act:

The balancing act here pits the goal of price competition against the perceived need to maintain service quality. ICAM traditionally argues that minimum or orientative fees are necessary to prevent a race to the bottom that would lead to mediocre services and a deterioration in professional standards. This aligns with the principle that information asymmetries in the liberal professions make it difficult for consumers to judge quality based solely on price. Conversely, the WPI argument for the claimant is that such tariffs create an incentive to overcharge and facilitate a transfer of welfare from consumers to producers without a clear democratic mandate. The challenge would argue that minimum fees cannot guarantee quality and that competition should be the primary regulator of the market unless a specific restriction is objectively justified and proportionate.

Judicial Review Opportunity Two: Regulatory Failure and Oversight by the Ministry of Justice

Grounds for Review:

This opportunity targets the Spanish Ministry of Justice or the General Council of Spanish Advocacy for failing their duty to supervise ICAM’s regulatory functions. The claim rests on the argument that the state has allowed a captured regulator to operate, where the professional body’s interests supersede the public interest. This includes the failure to adequately review and amend draft tariffs that do not account for the general interest.

Custom Balancing Act:

The conflict here is between member state sovereignty and the appropriate level of European or central intervention. The state may argue that professional self-regulation is a legitimate exercise of public power aimed at ensuring the administration of justice. However, the counter-argument is that such self-regulation has become a form of regulatory capture. The claimant must demonstrate that the oversight process is inadequate—for example, that the Ministry cannot independently amend fee drafts but must rely on the bar association itself. The balancing act requires the court to shift from a limited review of manifest errors to a more comprehensive review of whether the state is meeting its duty to prevent anti-competitive distortions.

Judicial Review Opportunity Three: Ultra Vires Actions via Delegated Acts

Grounds for Review:

This opportunity arises if ICAM or the government implements significant changes to the professional regime through delegated acts or bylaws rather than formal legislation. If these changes touch upon essential elements of the profession—such as the fundamental right to practice or the core structure of professional fees—they may be considered illegal.

Custom Balancing Act:

The balancing act involves weighing the efficiency of delegated regulation against the necessity of a democratic mandate. Courts have held that political choices involving conflicting interests must be made by the legislature. If a measure adopted by ICAM involves intense interference with competition or fundamental rights, a stricter proportionality test is required. The state may argue the need for technical expertise in professional regulation, but the claimant can argue that such essential elements cannot be delegated to a body that lacks democratic legitimacy, especially if the policy is sensitive or relates to high-level market structures.

Judicial Review Opportunity Four: Barriers to Entry and Membership Registration

Grounds for Review:

This opportunity concerns the specific refusal of registration or the imposition of overly restrictive entry requirements by ICAM. Such actions can be challenged as an abuse of a dominant position or a restrictive practice that limits the quantity of practitioners to protect the financial interests of existing members.

Custom Balancing Act:

The court must balance the WPI goal of ensuring professional competence through rigorous standards against the risk of creating artificial barriers to entry. While ICAM may justify its requirements on the grounds of quality control and the protection of the public, the claimant can argue that these measures are disproportionate and serve to insulate the incumbent members from competition. The balancing act requires evidence of whether the examination or registration process has sufficient guarantees to ensure it operates in the public interest rather than solely in the interest of the bar association.

Conclusion

These judicial review opportunities represent a strategic effort to use competition law as a democratic tool to ensure the rule of law in professional markets. By challenging the jurisdictional scope of professional associations and the adequacy of state oversight, claimants can force a re-evaluation of whether current regulations truly serve the wider public interest or merely protect the economic interests of a captured regulator. Each case will require a detailed proportionality test to determine if the anti-competitive effects are truly necessary to achieve legitimate non-economic goals.

ALLIES

I have reviewed the provided URL again. While the document contains detailed legal strategy and identifies general classes of stakeholders (like “SME Producer” or “Large Blender”), it does not contain a list of specific companies, associations, or organizations with their official contact details that would benefit from the proposed judicial reviews.

The information you need—specific entities who could launch follow-on compensation claims or gain positive externalities—is not included in the text. The URL focuses on the legal causes of action, procedural tactics, and draft communications to regulators, not a directory of potential beneficiary firms.

To obtain the list you are looking for, you should execute the Freedom of Information (FOI) request strategy that is central to the document. The data you seek is precisely what the FOI letters are designed to uncover from the authorities:

* **The FOI request to the UK Trade Remedies Authority (TRA)** asks for the “number of submissions, complaints, or injury reports… broken down by type of stakeholder.” A full response to this request would logically include the names of the companies or associations that have submitted these complaints, which are your primary candidates for beneficiaries.
* **The FOI request to HMRC/DEFRA** asks for details on “circumvention reports” and enforcement actions. Information from this request could identify UK-based importers or blenders who have reported unfair competition or are affected by lax border enforcement.

Therefore, the most direct and legally sound method to build your list is to send these drafted FOI requests. The responses will provide official, sourced data on which specific UK industry players are actively engaged and harmed, giving you a validated roster of potential allies for your judicial review.

As a supplementary step, you could also research major UK trade associations for the biofuels, agriculture, and refining sectors (e.g., the UK Sustainable Biodiesel Alliance, the National Farmers’ Union, the UK Petroleum Industry Association). Their member companies collectively represent the “diffuse victim” class and the associations themselves may have a strong interest in the outcome for their members’ benefit.

JPS

Based on a thorough analysis of the case details provided in your URL, this response addresses the legal position concerning Indonesian biodiesel subsidies and the potential for judicial review (JR) and other remedies in a UK context. The core finding is that while challenges to the original 2019 EU regulation are likely time-barred, significant and timely JR opportunities exist regarding the UK authorities’ ongoing implementation and enforcement actions.

### 1. Analysis of Judicial Review Opportunities & Causes of Action

**Existing JR and Time-Barred Issues:** A direct judicial review of the foundational EU Regulation 2019/2092, which imposed countervailing duties, is almost certainly time-barred under UK law, as it was enacted in November 2019. Challenges at the EU level have already occurred. However, this does not foreclose all avenues.

**Ongoing and Fresh JR Opportunities:** The critical, non-time-barred opportunities lie in the **ongoing conduct and decisions of UK public bodies**. Specifically:
1. **The UK Trade Remedies Authority’s (TRA) Transition Review:** This is a live administrative process reassessing the 2019 measures. Any final decision by the TRA is a fresh, judicially reviewable decision. A failure to properly consider the alleged ultra vires and corrupt nature of the Indonesian BPDPKS fund could form grounds for challenge.
2. **Enforcement Omissions by HMRC/DEFRA:** The apparent failure to robustly enforce either countervailing duties or deforestation regulations (UKDR) at the border constitutes a continuing “omission” or policy of non-enforcement. This is a classic subject for JR, as it represents an ongoing failure to perform a statutory duty.
3. **The “Trick” Letter Strategy:** Your proposed strategy is legally sound and strategically astute. Writing to the TRA, HMRC, or DEFRA to formally request an investigation or a reconsideration of a specific issue (e.g., the illegality of BPDPKS certificates) would force a decision. A refusal to act, or an unreasonable decision, would be a fresh, reviewable decision. This would also bolster your client’s standing, as they would be directly aggrieved by the refusal of a request they made.

**Legal Causes of Action (COAs) and Standing:**
* **For JR:** The primary COAs are **Illegality** (failing to take relevant factors into account, such as corruption evidence) and **Irrationality** (making a decision on the basis of unreliable sustainability certifications without verification, which could be *Wednesbury* unreasonable). **Procedural Impropriety** may also arise if consultations are flawed.
* **Standing for a “No Particular Victim” Applicant:** Your client, as a charity focused on market competition and public interest, can argue for standing based on a “sufficient interest” under the Senior Courts Act 1981. The key is demonstrating a genuine concern with the issue, expertise, and the existence of a “regulatory vacuum” where diffuse harm to many UK producers does not incentivize any one victim to sue. This aligns with the public interest standing principles seen in cases like *R (Greenpeace Ltd) v Secretary of State for Trade and Industry*. The evidence of fragmented, small losses across the industry (which your FOI requests seek to establish) directly supports this argument.

The following sections address your questions based on the **non-time-barred opportunities** identified above: the TRA’s Transition Review and HMRC/DEFRA’s enforcement omissions.

### 2. Ultra Vires & Irrational DORCAPs Analysis
Ranked by likelihood of successful challenge:
1. **HMRC/DEFRA’s Omission to Enforce the UKDR (Deforestation Regulation):** This is highly susceptible to a finding of irrationality. Relying on sustainability certificates (e.g., ISCC) from a fund (BPDPKS) under investigation for corruption, without independent verification, could be deemed so unreasonable that no reasonable authority would do it. The harm is ongoing with each non-compliant shipment.
2. **The TRA’s Potential Decision in the Transition Review:** If the TRA finalizes its review without a rigorous examination of whether BPDPKS subsidies are unlawful under Indonesian law (*ultra vires*), its decision could be found illegal for failing to consider a material and relevant factor. The evidence of corruption goes to the heart of the subsidy’s existence and distortive effect.
3. **HMRC’s Omission to Prevent Duty Circumvention:** A systemic failure to investigate or act upon intelligence regarding transshipment of Indonesian biodiesel through third countries may constitute an irrational omission, failing in the core duty to collect taxes and protect the domestic market.

### 3. Suspended Quashing Orders
For a successful challenge to the **TRA’s Transition Review decision**, a suspended quashing order would be the appropriate remedy. The order should quash the TRA’s final determination in the review. It must be suspended for a period of **6 months** to allow the TRA to re-do its assessment, properly considering the evidence on the BPDPKS fund’s legality. A condition should be that the TRA must consult with your client and other interested parties on the scope of its re-investigation. An immediate quashing would create a legal vacuum and market uncertainty, justifying the suspension.

### 4. Ongoing Harm & Injunctive Relief
The ongoing harm is the continuous entry of biodiesel that may be i) inaccurately priced due to uncountered subsidies, and ii) linked to deforestation, causing environmental harm and distorting the green fuels market.
An application for an **interim injunction** against HMRC/DEFRA should seek to compel them to suspend the acceptance of BPDPKS-linked sustainability certificates for biodiesel imports pending a full, verified audit. The key elements to draft would be: i) a high likelihood of success at trial on the irrationality point, ii) the risk of irreparable environmental and market harm if non-compliant fuel continues to enter, and iii) that the balance of convenience favours preserving the integrity of the regulatory regime.

### 5. Statement of Legal Principle Declaration
“It is hereby declared that the Trade Remedies Authority, in conducting a transition review of countervailing measures, acts irrationally and fails in its statutory duty if it does not actively investigate and give decisive weight to credible evidence that the foreign subsidy under examination is administered by a fund that operates ultra vires its national laws and is subject to findings of systemic corruption, as this goes to the fundamental character, specificity, and distortive effect of the financial contribution.”

### 6. Risk Disclosure Statement Court Order
The proposed order would require the public body (e.g., TRA or DEFRA) to publish, within 28 days, a “Public Interest Risk Disclosure Statement” on the homepage of its official website and in its next annual report. The statement must clearly outline: i) the unlawfulness or irrationality found by the court, ii) the specific risks this created for UK producers, consumers, and the environment, and iii) the precise steps being taken to remediate the issue and prevent recurrence.

### 7. Assessment & Publicity of Risk
Your FOI requests correctly target this critical issue. Based on the available information, there is no indication that the UK authorities conducted a prior, public risk assessment on accepting BPDPKS certifications. Highlighting this failure is a powerful additional ground for criticism, demonstrating a lack of due diligence. A court would expect a competent regulator to have proactively assessed the risks of fraud and corruption in its supply chain verification.

### 8. Responsible Parties & Individual Liability
The units most responsible are: i) the **TRA’s Investigation Directorate** handling the biodiesel transition review, and ii) **HMRC’s Customs Enforcement teams** and **DEFRA’s Forest Risk Commodities implementation unit**.
The answers to your sub-questions are likely: (a) No, (b) No, (c) No. This lack of individual accountability is a systemic failing that perpetuates regulatory inertia. Pursuing this line through FOI and, if necessary, in court submissions is strongly recommended to highlight the absence of personal responsibility and deterrence within the administration.

### 9. Tort Damages & Remediation Project
Aggregate tort damages (e.g., for misfeasance in public office or breach of statutory duty) are difficult to quantify but could be estimated based on the subsidy margin (8-18%) applied to the volume of imports during the period of negligent enforcement. A notional figure could run into tens of millions of pounds.
Given the diffuse victim class, a **Biofuels Innovation and Sustainability Trust** should be established. Damages would be paid into this trust. Its mandate would be to fund: i) independent satellite monitoring of supply chains for UK biofuel imports, ii) grants for UK farmers and SMEs to improve sustainable feedstock production, and iii) a public information portal on biofuel sustainability. This directly remedies the informational and market failures at the heart of the case, creating positive spillovers for the entire sector and the environment.

I hope this comprehensive analysis provides a robust foundation for strategic action. The key immediate steps are to deploy the FOI requests to gather evidence and to prepare to engage with the TRA’s ongoing review process.

17DEC

FOIS

Based on the Indonesia Case details (Biodiesel Subsidies, Regulation 2019/2092, and EUDR enforcement) and the Super FOI Model, here are the three customised Freedom of Information (FOI) letters.

These are tailored for the UK Trade Remedies Authority (TRA) (subsidy reviews), HMRC / DEFRA (border enforcement/EUDR), and the Spanish CNMC (competition regulator for the tort claim).

LETTER 1: UK TRADE REMEDIES AUTHORITY (TRA)

Context: The TRA is conducting a Transition Review of the EU anti-subsidy measures. This request investigates if they have properly assessed the “Ultra Vires” nature of the Indonesian Oil Palm Plantation Fund (BPDPKS) and the risk of under-protection for UK producers.

[Copy and Paste into TRA Information Access Request / Email]

To: Information Rights Unit / Trade Remedies Authority

Email: [general.enquiries@traderemedies.gov.uk] (or via Information Access form)

Subject: Freedom of Information Request – Evidence regarding [Indonesian Biodiesel Subsidy Transition Review] and Public Risk Assessment

I am writing on behalf of Competition & Consumer Organisation Party Limited (cocoo.uk), a charity dedicated to the Wider Public Interest and taxpayer protection. We intervene in regulatory failures where the harm is diffuse and an “enforcement vacuum” exists because individual victims lack the financial incentives or standing to litigate effectively.

This request is made to assess whether the DORCAP (Decision, Omission, Regulation, Conduct, Action, or Policy) referenced—specifically the Transition Review of Countervailing Duties on Biodiesel from Indonesia (TS00XX)—meets the criteria for intervention due to a failure of the Rule of Law. We seek to verify if there are indications of ultra vires acts, failure to consider material evidence regarding the Indonesian Oil Palm Plantation Fund (BPDPKS), or a lack of risk assessment regarding injury to UK industry.

Under the Freedom of Information Act 2000, I request the following information in electronic format:

PART 1: ESTABLISHING THE “ENFORCEMENT VACUUM” (Locus Standi Data)

To confirm cocoo.uk’s standing, we require evidence of fragmented harm to the domestic industry.

  • Victim Demographics: Please disclose the number of submissions, complaints, or injury reports received regarding Indonesian Biodiesel Imports in the last 3 years, broken down by type of stakeholder (e.g., “SME Producer”, “Farmer/Feedstock Supplier”, “Large Blender”).

  • Economy of “Rational Apathy”: Does the Authority possess any economic impact assessment estimating the “financial loss per tonne” for UK producers caused by the subsidy margin of 8-18%? If so, disclose the key figures that confirm whether individual losses disincentivize private litigation.

PART 2: LEGALITY AND RISK (Governance Checks)

To assess the grounds for a claim of regulatory failure or ultra vires decision-making.

  • Ultra Vires Risk Assessment: Please disclose the existence (and, if not exempt, a summary) of any legal advice, internal note, or Risk Register entry flagging the risk that the Indonesian Oil Palm Plantation Fund (BPDPKS) operates as a “Public Body” in a manner contrary to WTO rules or UK subsidy control principles. Specifically, did the legal team warn decision-makers about the “corruption” or “non-transparency” of this Fund as a basis for higher duties?

PART 3: SPECIFIC CIRCUMSTANCES – THE “CLAWBACK” TRAP

To gather key evidence on the protection of the public purse.

I request confirmation of whether this Authority has ever initiated a disciplinary or “surcharge” procedure against its own officials or sought “Regreso” (clawback) for negligence in the calculation of subsidy margins that resulted in financial loss to the UK industry or taxpayer.

  1. Indicate the number of such internal disciplinary files opened in the last 5 years regarding trade remedy calculations.

  2. If the answer is “None”, confirm if there is an internal instruction or policy not to pursue such actions, and explain how this justifies the omission to protect the integrity of trade defence measures.

PART 4: SYSTEMIC ASPECTS & AUDIT TRAIL

  1. Internal Audit: Provide the titles of any reports by the Government Internal Audit Agency (GIAA) issued in the last 3 years that analysed the “Quality Assurance of Subsidy Calculations” or the management of “Trade Defence Litigation Risks”.

Advice and Assistance

If you determine that this request exceeds cost limits, please contact me immediately under your duty to assist so we may refine the request.

Yours sincerely,

Oscar Moya

Solicitor, COCOO.uk

LETTER 2: HMRC & DEFRA (JOINT COMPETENCE)

Context: Focusing on the “Enforcement Vacuum” regarding the new EUDR (Deforestation Regulation) equivalent in the UK and the collection of duties. The “DORCAP” here is the failure to stop non-compliant biodiesel at the border.

[Copy and Paste into Information Rights Team Email]

To: Information Rights Team (HMRC / DEFRA)

Email: [foi.request@hmrc.gov.uk] / [defra.helpline@defra.gov.uk]

Subject: Freedom of Information Request – Evidence regarding [Biodiesel Import Controls & Deforestation Compliance] and Revenue Protection

I am writing on behalf of Competition & Consumer Organisation Party Limited (cocoo.uk)… [Standard Intro as above]

This request concerns the DORCAP of Border Enforcement and Due Diligence checks on Biodiesel imports from Indonesia (CN Code 3826 00 10), specifically regarding compliance with Subsidy Duties and Deforestation Standards (UK Forest Risk Commodities provisions).

Under the Freedom of Information Act 2000 (and Environmental Information Regulations 2004), I request:

PART 1: ESTABLISHING THE “ENFORCEMENT VACUUM”

  • Circumvention Reports: Disclose the number of reports or intelligence alerts received in the last 3 years regarding “Transshipment” or “Circumvention” of Indonesian Biodiesel duties via third countries (e.g., China or UK/EU hubs).

  • Enforcement Actions: How many individual shipments of Indonesian Biodiesel have been seized or rejected at the border for failure to prove “deforestation-free” status in the last 24 months? A result of “Zero” would confirm an enforcement vacuum.

PART 2: LEGALITY AND RISK

  • Risk of Unlawful Entry: Please disclose any “Risk Profile” or internal memo assessing the probability that Sustainability Certificates (e.g., ISCC) provided by Indonesian importers are fraudulent or based on “Ultra Vires” land concessions (illegal deforestation). Has the Department quantified the risk of accepting these certificates without independent satellite verification?

PART 3: THE “CLAWBACK” (REGRESO)

I request confirmation of whether the Department has ever surcharged or disciplined an official for “Negligence in Customs Clearance” resulting in the loss of Countervailing Duties on Biodiesel.

  1. Indicate the number of “uncollected duty” recovery actions initiated against importers of Indonesian biodiesel in the last 5 years.

  2. Confirm if any “Regreso” action has been taken against staff for failing to apply the correct duty code.

PART 4: SYSTEMIC ASPECTS

  1. Audit Trail: Provide the titles of any internal audits regarding “Customs Controls on Biofuels” or “Deforestation Due Diligence Checks” from 2023-2025.

Yours sincerely,

Oscar Moya

Solicitor, COCOO.uk

LETTER 3: CNMC (SPAIN) – COMISIÓN NACIONAL DE LOS MERCADOS Y LA COMPETENCIA

Context: Adapted for the Spanish Regulator regarding the Collective Tort Claim. This follows the “ESP-SUPERFOI” model strictly but inserts the Biodiesel context. It challenges the lack of action against “Unfair Competition” (Competencia Desleal) from subsidized imports.

[Copiar y Pegar en el Portal de Transparencia / Email]

Para: Unidad de Transparencia / CNMC (Comisión Nacional de los Mercados y la Competencia)

Email: [transparencia@cnmc.es]

Asunto: Solicitud de Acceso a Información Pública – Evidencias sobre [Subvenciones al Biodiésel de Indonesia y Competencia Desleal] y Análisis de Riesgo Regulatorio

Escribo en nombre de Competition & Consumer Organisation Party Limited (COCOO.uk), una organización benéfica dedicada a la protección del Interés Público… [Intro Standard en Español].

Esta solicitud evalúa si el DORCAP referenciado —específicamente la falta de incoación de expedientes sancionadores contra importadores de biodiésel subvencionado de Indonesia por actos de Competencia Desleal (art. 15 Ley 3/1991)— cumple los criterios de intervención.

Al amparo de la Ley 19/2013, de transparencia, solicito:

PARTE 1: ESTABLECIMIENTO DEL “VACÍO DE EJECUCIÓN”

  • Demografía de Víctimas: Desglose el número de denuncias recibidas sobre “Dumping” o “Subvenciones Cruzadas” en el sector de carburantes/biodiésel en los últimos 5 años.

  • Apatía Racional: ¿Posee la CNMC algún informe económico que estime el daño a las refinerías españolas (ej. Repsol, Cepsa) causado por el diferencial de precios del biodiésel indonesio (dumping margin)? Revele las cifras clave.

PARTE 2: LEGALIDAD Y RIESGO

  • Evaluación de Riesgo Ultra Vires: Revele la existencia de cualquier informe jurídico o nota interna que analizara si la aceptación de certificados de sostenibilidad de Indonesia (concedidos por el ente BPDPKS) viola las normas de competencia de la UE o la Ley de Defensa de la Competencia.

PARTE 3: LA TRAMPA DEL “REGRESO” (Punto Crítico)

Solicito que se confirme si este organismo ha incoado alguna vez la ‘Acción de Regreso’ conforme al Artículo 36 de la Ley 40/2015 para recuperar indemnizaciones pagadas por la Administración derivadas de la “falta de vigilancia” en el mercado de carburantes.

  1. Indique el número de expedientes de regreso iniciados en los últimos 10 años en el área de Energía/Combustibles.

  2. Si es ‘ninguno’, confirme si existe una práctica administrativa de no ejecutar estas acciones, justificando dicha omisión ante el perjuicio al productor nacional.

PARTE 4: ASPECTOS SISTÉMICOS

  1. Auditoría Interna: Facilite los títulos de los informes de control interno de los últimos 3 años que hayan analizado la “Supervisión del Mercado de Biocarburantes”.

Atentamente,

Oscar Moya

Director, COCOO.uk

As solicitor for cocoo.uk, I have analyzed the case regarding Indonesian biodiesel subsidies. This case involves complex interplay between international trade findings, proposed private law remedies (tort/contract), and public law challenges (judicial review).

Below is the application of your three questions to the possible Causes of Action (COAs) in this case.

COA 1: UNFAIR COMPETITION / SUBSIDY CLAIMS (TRADE DEFENCE)

Context: Claims based on the findings that Indonesian producers received unfair government support, allowing them to undercut EU/UK prices.

  • DATES & TIME LIMITS:

    • EU Duties Imposed: November 28, 2019 (Regulation 2019/2092).

    • Expiry/Review: The measures were set to expire in November 2024 but are currently subject to an Expiry Review (initiated late 2024) and a Transition Review by the UK Trade Remedies Authority (TRA).

    • Claim Time Limit: Participation in reviews has strict deadlines (typically 15-30 days from initiation).

  • 1/ IDENTIFY PROVEN FOIGS (FINDINGS OF INFRINGEMENT):

    • Proven Finding: The European Commission (and similarly the US Dept of Commerce in 2017) made a definitive finding of subsidization.

    • Infringing Private Companies: Specific subsidy margins were calculated for Indonesian exporters:

      • Wilmar Group: 15.7% subsidy margin.

      • Musim Mas Group: 16.3% subsidy margin.

      • Permata Group: 18.0% subsidy margin.

      • PT Ciliandra Perkasa: 8.0% subsidy margin.

    • Nature of Infringement: These companies were found to have received actionable subsidies via the Oil Palm Plantation Fund (BPDPKS) and the provision of Crude Palm Oil (CPO) at less than adequate remuneration (LTAR) due to the Indonesian export levy system.

  • 2/ DORCAP (REGULATORY ACT) & JUDICIAL REVIEW:

    • Identified DORCAP: The relevant “DORCAP” (Decision/Operational Act) was the establishment and operation of the Oil Palm Plantation Fund (BPDPKS) by the Indonesian Government, specifically the Regulations of the Minister of Finance (PMK) that set the export levies.

    • Ultra Vires/Unlawful Possibility: There are strong indicators that the operation of the Fund was ultra vires or unlawful under Indonesian law due to corruption and lack of transparency. Investigations (e.g., by the Indonesian Corruption Eradication Commission, KPK) have suggested the Fund was used to enrich specific conglomerates (Wilmar, etc.) rather than its statutory purpose of supporting smallholders.

    • Judicial Review Status:

      • EU Level: The EU duties (the regulator’s response to the DORCAP) were judicially reviewed. The Indonesian companies (e.g., PT Pelita Agung Agrindustri) challenged Regulation 2019/2092 in the EU General Court (Case T-143/20). The EU’s findings have largely been upheld.

      • WTO Level: Indonesia challenged the EU measures at the WTO (Dispute DS593).

  • 3/ STATE REDRESS & DISCIPLINARY ACTION:

    • State Redress to Victims: No. The State (neither Indonesia nor EU/UK) has not paid compensation directly to the victims (EU/UK biodiesel producers) via settlement. The duties collected go to the EU/UK treasury, not the injured companies.

    • Disciplinary/Regreso: There is no evidence of regreso (clawback) payments by the companies back to the Indonesian state. Conversely, the flow of funds was from the State (Fund) to the companies.

    • Investigation: While the KPK in Indonesia has investigated the Fund’s management for corruption (“state capture”), no massive recovery of funds has been publicly confirmed as returned to the state treasury to date.

COA 2: PRIVATE LAW TORT / DAMAGES CLAIM (FOLLOW-ON ACTION)

Context: A collective claim (Class Action) by EU/UK producers seeking compensation for the “material injury” caused by the subsidized imports.

  • DATES & TIME LIMITS:

    • UK Limitation: 6 years from the date the cause of action accrued (limitation likely runs from the 2019 findings or ongoing daily losses). Deadline: November 2025.

    • Spain Limitation: 1 year for tort (negligence), but potentially 5 years for unfair competition actions from the moment the infringement is known.

  • 1/ IDENTIFY PROVEN FOIGS (FINDINGS OF INFRINGEMENT):

    • Proven Finding: The finding of “Material Injury” to the Union industry in Regulation (EU) 2019/2092.

    • Infringing Private Companies: The same exporters (Wilmar, Musim Mas, etc.) are the defendants. The “Infringement” here is the tort of unfair competition or conspiracy to injure by using unlawful means (subsidies) to distort the market.

  • 2/ DORCAP (REGULATORY ACT) & JUDICIAL REVIEW:

    • Identified DORCAP: The failure of UK/EU regulators (e.g., UK TRA or HMRC) to strictly enforce EUDR (Deforestation Regulation) or apply sufficient duties sooner.

    • Ultra Vires/Unlawful Possibility: If the regulators had a mandatory duty to prevent “deforestation-linked” biodiesel from entering and failed to do so, this omission could be the unlawful act.

    • Judicial Review Status: There is currently no public record of a successful Judicial Review against the UK/EU regulators specifically for damages regarding this failure. This is likely the basis of the proposed cocoo.uk litigation strategy (to establish this liability).

  • 3/ STATE REDRESS & DISCIPLINARY ACTION:

    • State Redress to Victims: No. The victims (Greenergy, Cepsa, etc.) have received no compensation. The cocoo.uk Mediation Agreement proposes a €40 million settlement fund to be paid by the Infringers (Indonesian exporters), not the State.

    • Disciplinary/Regreso: Not applicable yet as no settlement has been reached.

COA 3: BREACH OF EUDR / ENVIRONMENTAL NEGLIGENCE

Context: Claims that importers breached the EU Deforestation Regulation (Regulation 2023/1115) and environmental duties.

  • DATES & TIME LIMITS:

    • EUDR Application: Fully applicable from December 30, 2024 (for large operators).

    • Claim Time Limit: Claims for negligence/breach of statutory duty would arise from acts committed after this date.

  • 1/ IDENTIFY PROVEN FOIGS (FINDINGS OF INFRINGEMENT):

    • Proven Finding: While strictly “new,” reports by Greenpeace (2024) and the USDA have made factual findings linking specific Indonesian palm oil concessions to deforestation.

    • Infringing Private Companies: Major buyers/importers in the EU (e.g., potentially Unilever, Nestlé, Greenergy) could be found infringing if they fail the new strict due diligence checks.

  • 2/ DORCAP (REGULATORY ACT) & JUDICIAL REVIEW:

    • Identified DORCAP: The Competent Authorities’ (in UK/EU member states) validation of due diligence statements.

    • Ultra Vires/Unlawful Possibility: If a Competent Authority accepts a due diligence statement that is fraudulent or incomplete (lacking geolocation data), that acceptance is an unlawful DORCAP.

    • Judicial Review Status: Not yet reviewed as the regulation is newly implemented.

  • 3/ STATE REDRESS & DISCIPLINARY ACTION:

    • State Redress to Victims: No.

    • Disciplinary/Regreso: The regulation provides for fines of up to 4% of EU turnover. If these fines are levied, they go to the State. There is a possibility of “confiscation of revenues,” effectively a regreso payment back to the public purse.

Relevant YouTube Video: Indonesian Palm Oil and the EU Deforestation Regulation

This video explains the conflict between Indonesian palm oil production and the new EU environmental regulations, which is central to the “DORCAP” and compliance issues in this case.

Leave a Reply