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Action brought on 24 July 2008 - BASF Plant Science and Others v Commission

(Case T-293/08)

Language of the case: English

Parties

Applicants: BASF Plant Science GmbH (Ludwigshafen, Germany), Plant Science Sweden AB (Svalöv, Sweden), Amylogene HB (Svalöv, Sweden) and BASF Plant Science Holding GmbH (Ludwigshafen, Germany) (represented by: D. Waelbroeck, lawyer, U. Zinsmeister, lawyer and D. Slater, Solicitor)

Defendant: Commission of the European Communities

Form of order sought

To declare the present application admissible and well founded;

To declare that, by failing to take the necessary measures provided for in Article 18 of Directive 2001/18/EC of 12 March 2001 and in Article 5 of Council Decision 1999/468/EC of 28 June 1999 and adopt the Amflora Decision, the Commission has failed to fulfil its obligations under these articles; alternatively

To order the annulment of the Commission decision granting a mandate to EFSA "for a consolidated opinion on use of antibiotic resistant marker genes (ARM) used as marker genes in genetically modified plants", dated 14 May 2008 and the suspension of the procedure leading to the adoption of the Amflora Decision, notified to the applicants by letter dated 19 May 2008;

To grant the requested measures of instruction;

To order the defendant to pay all costs and expenses incurred in these proceedings.

Pleas in law and main arguments

The applicants claim that the Commission, by failing to adopt a decision on the request for authorisation to place a genetically modified potato ("Amflora potato") on the market for industrial uses under Directive 2001/18/EC¹, has disregarded its obligations under Article 18(1) of the said directive and Article 5(6) of Council decision 1999/468/EC ('the Comitology decision')² and has thereby failed to act within the meaning on Article 232 EC.

The applicants submit that the Commission's obligation to adopt such a decision within the timeframe laid down in Directive 2001/18/EC is further confirmed by a number of factors, namely (a) the need to preserve institutional balance, (b) further consideration of the legal basis for the Commission's request and (c) general principles of EC law.

However, the applicants contend that, in the event that the Court found that the Commission's letter of 19 May 2008 constitutes a definition of the Commission's position, and that the applicants' action for failure to act is therefore inadmissible, the applicants request in the alternative the Court to annul the Commission decision of 14 May 2008 granting a mandate to EFSA for a consolidated opinion, and the suspension of the procedure pending a fifth scientific assessment, leading to the adoption of the contested decision.

The applicants claim that in adopting the contested decision, and thus, further delaying the adoption of the Amflora Decision, the Commission infringed Article 18(1) of Directive 2001/18 and Article 5(6) subparagraph 3 of the Comitology decision, which required the Amflora Decision to be adopted within 120 days following the commencement of the Community procedure, as well as fundamental EC law principles of proportionality, sound administration, legitimate expectations, legal certainty and non-discrimination.

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¹ - Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberaterelease into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC (OJ 2001 L 106, p. 1)

² - Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 1999 C 184, p. 23)