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Action brought on 18 February 2010 - Xeda International and Pace International v Commission

(Case T-71/10)

Language of the case: English

Parties

Applicants: Xeda International (Saint Andiol, France) and Pace International LLC (Seattle, United States of America) (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 Commission to pay all the costs and expenses of these proceedings,

take such other further measures as justice may require.

Pleas in law and main arguments

By means of their application, the applicants seek the annulment of Commission's decision No 2009/859/EC of 30 November 2009 concerning the non-inclusion of diphenylamine in Annex I to Council directive No 91/414/EEC and the withdrawal of authorisations for plant protection products containing that substance [notified under number C(2009) 9262] (OJ 2009 L 314, p. 79).

The applicants claim that, as a result of the contested decision, the first applicant will no longer be allowed to sell diphenylamine and diphenylamine-based products in the European Union and will lose its product registrations in the Member States effective as of 30 May 2010.

The applicants submit that the contested decision is unlawful because it is based on an underlying assessment of diphenylamine that is scientifically and legally flawed. According to the applicants, it infringes the Treaty on the Functioning of the European Union and secondary EU legislation.

In summary, the applicants contend that the contested decision bans the use of diphenylamine in plant protection products on the basis of three scientific concerns mentioned in recital 5 thereof, each of which was either adequately addressed by the applicants or was not a concern justifying non-inclusion.

Further, the applicants claim that the Commission infringed the applicants' right of defence inasmuch as it prevented them from relying on the possibility to withdraw and re-submit a new dossier while benefiting from a longer phase-out period, as it was the case for other substances belonging to the same regulatory process.

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