Notice for the OJ
Action brought on 28 January 2005 by Ritec International Limited against the Commission of the European Communities
(Case T-40/05)
Language of the case: English
An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 28 January 2005 by Ritec International Limited, established in Enfield (United Kingdom), represented by P.H.L.M. Kuypers and M.J. Osse, lawyers with an address for service in Luxembourg.
The applicant claims that the Court should:
- declare that the applicant does not require to obtain an exemption under Article 5(7) Regulation 2037/2000/EC for its particular use of HCFC-141b in the product "ClearShield";
- in the alternative, order the Commission to take as soon as possible a new decision in accordance with the ruling of the Court, should the Court declare that the applicant is required to obtain an exemption under Article 5(7) Regulation 2037/2000 for its particular use of HCFC-141b in the product "ClearShield";
- declare that the applicant has sufficiently demonstrated that for its particular use of HCFC-141b in the product "ClearShield" no technically and economically feasible alternative substance or technology is available nor can be used in the sense of Article 5 (7) Regulation 2037/2000;
- order the Commission to pay all the costs in these proceedings.
Pleas in law and main arguments
Article 5 (7) of Regulation 2037/2000/EC1 allows the Commission, following a request by a competent authority of a Member State, to authorise a time-limited exemption allowing the use and placing on the market of hydrochlorofluorocarbons, in cases where it is demonstrated that, for a particular use, technically and economically feasible alternative substances or technologies are not available or cannot be used. The competent authority of the United Kingdom filed such a request to obtain, for the applicant, an exemption for its particular use of HCFC-141b in its product "ClearShield", a glass protection product. On 23 November 2004 the Commission rejected this application.
The applicant considers that the Commission misunderstood the way in which the applicant uses HCFC-141b and further contests the Commission's assertions that products similar to non-flammable "ClearShield are marketed, that the applicant was planning to release the flammable "ClearShield" or a spray booth in 2005, that flammable glass protection products can be rendered safe for the applicator when the flammable product is applied in a spray booth, and that it has had sufficient time to replace the use of HCFC-141b with alternatives. It further contends that the contested decision fails to take into account that the applicant has found an alternative to the use of HCFC-141b. At the same time the applicant challenges the Commission's finding that several non-HCFC alternatives are available but not yet implemented due to flammability concerns or that they are used by other companies within the EU market. The applicant submits that it has found only one alternative which is not commercially available.
The applicant further challenges the Commission's findings that use of HCFC-141b had already been banned under Regulation 3093/19942 and that an exemption under Article 5 (7) of Regulation 2037/2000 was necessary for the applicant's continued use of that substance. According to the applicant its particular use of HCFC-141b is not covered by regulation 2037/2000 or, at the very least, will be prohibited only after 2015.
Finally, the applicant alleges that the Commission's decision infringes Article 253 EC by failing to state the reasons on which it is based.
____________1 - Regulation (E) No 2037/2000 of the European Parliament and of the ouncil of 29 June 2000 on substances that deplete the ozone layer, OJ L 244 p.1 2 - Council Regulation (EC) No 3093/9 of 15 December 199 on substances that deplete the ozone layer OJ L333 p. 1