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Action brought on 17 September 2010 - Dow AgroSciences and Dintec Agroquímica - Produtos Químicos v Commission

(Case T-446/10)

Language of the case: English

Parties

Applicants: Dow AgroSciences Ltd (Hitchin, United Kingdom) and Dintec Agroquímica - Produtos Químicos, Lda (Funchal, Portugal) (represented by: K. Van Maldegem and C. Mereu, lawyers)

Defendant: European Commission

Form of order sought

declare the application admissible and well-founded;

annul Decision 2010/355/EU;

order the Commission to pay the costs of the proceedings,

take such other or further measures as justice may require.

Pleas in law and main arguments

By means of this application the applicants seek the annulment of the Commission Decision 2010/355/EU of 25 June 2010 concerning the non-inclusion of trifluralin in Annex I to Council Directive 91/414/EEC¹.

The applicants put forward two pleas in law in support of their claims.

First, they argue that the contested decision is unlawful since it is based on, and exists only because, of an unlawful decision. That other decision², 2007/629/EC³, is the original non-inclusion decision for trifluralin which resulted from the Article 8(2) of Directive 91/414⁴ review of the substance. Had decision 2007/629/EC not been adopted unlawfully, the contested decision would not exist.

Second, the applicants submit that the contested act is itself unlawful for self-standing reasons. They contend that the Commission has erred as a matter of law in justifying the contested act on the grounds of the alleged concerns regarding:

potential long-range transport; in this regard, the applicants claim that the Commission failed to take into account data (lack of scientific justification) and violated the principle of sound administration and right of defence. Moreover, the approach adopted by the Commission with regard to long-range transport is, in the applicants' view, discriminatory and disproportionate;

fish toxicity; in this regard, the applicants claim that the scientific justification does not support the finding. Moreover, in their opinion, the contested act is disproportionate in the way it approaches the alleged chronic toxic concern.

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¹ - Notified under document C(2010) 4199, OJ 2010 L 160, p. 30

² - Contested by the applicants in the framework of Case T-475/07, Dow Agrociences and Others v Commission, OJ 2008 C 51 , p. 54

³ - Commission Decision of 20 September 2007 concerning the non-inclusion of trifluralin in Annex I to Council Directive 91/414/EEC and the withdrawal of authorisations for plant protection products containing that substance (notified under document number C(2007) 4282), OJ 2007 L 255, p. 42

⁴ - Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market, OJ 1991 L 230, p. 1