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Action brought on 7 June 2010 - Microban International and Microban (Europe) v Commission

(Case T-262/10)

Language of the case: English

Parties

Applicants: Microban International Ltd. (Huntersville, United States) and Microban (Europe) Ltd. (Heath Hayes, United Kingdom) (represented by: M. S. Rydelski, lawyer)

Defendant: European Commission

Form of order sought

Annul Commission Decision No 2010/169 of 19 March 2010 concerning the non-inclusion of 2,4,4'-trichloro-2'-hydroxydiphenyl ether in the Union list of additives which may be used in the manufacture of plastic materials and articles intended to come into contact with foodstuffs under Directive 2002/72/EC (OJ 2010 L 75, p. 25); and

Order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

By means of its application, the applicants seek, pursuant to Article 263 TFEU, the annulment of Commission Decision No 2010/169 of 19 March 2010 concerning the non-inclusion of 2,4,4'-trichloro-2'-hydroxydiphenyl ether in the Union list of additives which may be used in the manufacture of plastic materials and articles intended to come into contact with foodstuffs under Directive 2002/72/EC¹ (OJ 2010 L 75, p. 25), notified under document C(2010) 1613.

In support of its submissions, the applicants put forward the following pleas in law:

Firstly, that the contested Decision is not in accordance with the authorisation procedure under the framework Regulation² as it lacks an adequate legal basis for its adoption.

Secondly, the Decision adopted by the defendant not to include the product concerned in the Union list of additives without a risk management decision, solely based on the withdrawal of the original application for authorisation, is in breach of the authorisation procedure for the product concerned.

Thirdly, the defendant violated the applicants' legitimate expectations by not providing for the opportunity to replace the original applicant for the product concerned.

Finally, the procedure leading up to the contested Decision was not in compliance with general principles of EU law, such as the principles of sound administration, transparency and legal certainty.

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¹ - Commission Directive 2002/72/EC of 6 August 2002 relating to plastic materials and articles intended to come into contact with foodstuffs (OJ 2002 L 220, p. 18)

² - Regulation (EC) No 1935/2004 of the European Parliament and of the Council of 27 October 2004 on materials and articles intended to come into contact with food and repealing Directives 80/590/EEC and 89/109/EEC (OJ 2004 L 338, p. 4).