Action brought on 23 May 2011 - Xeda International/Commission

(Case T-269/11)

Language of the case: English

Parties

Applicant: Xeda International SA (Saint Andiol, France) (represented by: C. Mereu and K. Van Maldegem, lawyers)

Defendant: European Commission

Form of order sought

Declare the Application admissible and well-founded.

Annul the Contested Decision.

Order the Defendant to pay the costs and expenses of these proceedings.

Pleas in law and main arguments

The Applicant seeks the annulment of Commission Decision 2011/143/EU of 3 March 2011 concerning the non-inclusion of ethoxyquin in Annex I to Council Directive 91/414/EEC and amending Commission Decision 2008/941/EC (OJ L 59, p. 71).

As a result of the contested Decision, the entry for ethoxyquin in Decision 2008/941/EC has been deleted and ethoxyquin shall not be included as an active substance in Annex I to Directive 91/414/EEC. As a result, the applicant will no longer be allowed to produce and sell ethoxyquin and ethoxyquin-based products in the European Union and will lose its product registrations in the Member States as of 3 September 2011.

In support of the action, the applicant relies on three pleas in law.

First plea in law, alleging a manifest error of assessment. According to the applicant, the contested Decision effectively bans the use of ethoxyquin in plant protection products on the basis of a scientific concern and alleged data gaps mentioned in recital 6 thereof, each of which was either adequately addressed by the applicant or was not a concern justifying non-inclusion.

Second plea in law, alleging an infringement of the applicant's right of defence and essential procedural requirements. According to the applicant the contested Decision infringes the applicant's right of defence and its right to a fair hearing by failing to give the applicant sufficient opportunity and time to address concerns raised late in the procedure, and failing to carefully consider its comments in relation to alleged data gaps.

Third plea in law, alleging breaches of fundamental principles of EU law.

The applicant submits that the contested Decision was adopted in breach of the principle of legal certainty and the applicant's legitimate expectations arising out of the resubmission procedure under Commission Regulation (EC) No 33/2008 of 17 January 2008.

The applicant also submits that the contested Decision is disproportionate given the choice of measures available to the Commission and the disadvantages caused in relation to the aims pursued.

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