Notice for the OJ
Action brought on 26 December 2002 by Solvay Pharmaceuticals B.V. against Council of the European Union
(Case T-392/02)
(Language of the case: French)
An action against the Council of the European Union was brought before the Court of First Instance of the European Communities on 26 December 2002 by Solvay Pharmaceuticals B.V., established in Weesp (Netherlands), represented by Callista Meijer, Francis Herbert and Michel L. Struys, lawyers, with an address for service in Luxembourg.
The applicant claims that the Court should:
(annul Council Regulation (EC) No 1756/2002 of 23 September 2002 amending Directive 70/524/EEC concerning additives in feedingstuffs as regards withdrawal of the authorisation of an additive and amending Commission Regulation (EC) No 2430/1999;
(order the Council to pay the costs;
(in the alternative, should the application be dismissed on the merits, apply the first subparagraph of Article 87(3) of the Rules of Procedure and order the Council to pay the costs, in view of the persistent lack of cooperation and transparency on the part of the Commission in the administrative handling of the case.
Pleas in law and main arguments
The applicant manufactures Nifursol, a feedingstuff additive. The applicant is contesting Council Regulation No 1756/2002.
1 The contested regulation amends Council Directive 70/524/EEC
2 concerning additives in feeding-stuffs and withdraws authorisation to place Nifursol on the market. That authorisation is linked, by virtue of Regulation No 2430/1999,
3 to the person responsible for putting the product into circulation, in this case the applicant.
In support of its application, the applicant alleges infringement of Articles 9m and 3a(b) of Directive 70/524/EEC and breach of the precautionary principle. The sixth recital in the preamble to the contested regulation states that it could not be guaranteed that Nifursol does not present a risk for human health. According to the applicant, the Council altered the test referred to in the abovementioned articles according to which authorisation may be withdrawn only where it becomes apparent that the additive adversely affects human or animal health or the environment, or harms the consumer by impairing the characteristics of products.
The applicant further points out that the Council cannot rely on the precautionary principle since no reference is made thereto. In any event, the applicant claims that the Council is in fact choosing a purely hypothetical risk criterion which is irreconcilable with the case-law of the Court of First Instance which rules out a zero-risk level when applying the precautionary principle.
The applicant also alleges infringement of the fifth indent of Article 9m of Directive 70/524 as amended and of the general principle of equal treatment. According to the applicant, the Council and the Commission could not base themselves on the inadequacy of the information provided in order to withdraw authorisation, when the Commission has not made use of its powers to enjoin the person responsible for placing an additive on the market to provide it with information.
Finally, the applicant alleges breach of the fundamental principles of legal certainty, sound administration and good faith. The applicant makes the point that it has, on numerous occasions, approached the Commission without ever obtaining any indication which would have enabled it to provide results likely to be acceptable in the eyes of the Commission and the Council.
____________1 - (Council Regulation (EC) No 1756/2002 of 23 September 2002 amending Directive 70/524/EEC concerning additives in feedingstuffs as regards withdrawal of the authorisation of an additive and amending Commission Regulation (EC) No 2430/1999 (Text with EEA relevance)(OJ 2002 L 265, p. 1)2 - (Council Directive 70/524/EEC of 23 November 1970 concerning additives in feeding-stuffs (OJ, English Special Edition 1970 (III), p 840), 3 - (Commission Regulation (EC) No 2430/1999 of 16 November 1999 linking the authorisation of certain additives belonging to the group of coccidiostats and other medicinal substances in feedingstuffs to persons responsible for putting them into circulation (Text with EEA relevance)OJ 1999 L 296, p. 3