Action brought on 6 March 2008 - Arch Chemicals Inc. and Others v Commission

(Case T-120/08)

Language of the case: English

Parties

Applicants: Arch Chemicals, Inc. (Norwalk, United States), Arch Timber Protection Ltd (Castleford, United Kingdom), Bactria Industriehygiene-Service Verwaltungs GmbH (Kirchheimbolanden, Germany), Rhodia UK Ltd (Watford, United Kingdom), Sumitomo Chemical (UK) plc (London, United Kingdom) and Troy Chemical Company BV (Maassluis, Netherlands) (represented by: C. Mereu, K. Van Maldegem, lawyers)

Defendant: Commission of the European Communities

Form of order sought

to declare the present application admissible and well founded, or, in the alternative, to join the questions of admissibility to the examination of the substance, or, in the alternative, to reserve its decision on standing until judgment in the main proceedings;

to order the annulment of Article 3(2) (and Annex II), Article 4, Article 7(3), Article 14(2), second paragraph, Article 15(3) and Article 17 of Commission Regulation (EC) No 1451/2007 of 4 December 2007 on the second phase of the 10-year work programme referred to in Article 16(2) of Directive 98/8/EC of the European Parliament and of the Council concerning the placing of biocidal products on the market;

to declare the illegality and the inapplicability vis-à-vis the applicants of Articles 9(a), 10(3), 11 and 16(1) of Directive 98/8/EC of the European Parliament and of the Council concerning the placing of biocidal products on the market;

to declare the illegality and the inapplicability vis-à-vis the applicants of Article 6(2) of Commission Regulation (EC) No 1896/2000 of 7 September 2000 on the first phase of the programme referred to in 16(2) of Directive 98/8/EC of the European Parliament and of the Council on biocidal products;

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

Pleas in law and main arguments

The applicants seek partial annulment of Commission Regulation (EC) No 1451/2007 of 4 December 2007 on the second phase of the 10-year work programme referred to in Article 16(2) of Directive 98/8/EC of the European Parliament and of the Council concerning the placing of biocidal products on the market¹ (hereinafter 'the second review regulation' of 'SRR') and repealing Commission Regulation (EC) No 2032/2003², on the grounds that the contested provisions:

(i) maintain the letter and/or the content of provisions originally introduced by Regulation (EC) No 2032/2003 and previously challenged by the applicants (Cases T-75/04 to T-79/04) into the ongoing review of substances in a way which adversely affects their rights and legitimate expectations under Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market (hereinafter 'the BDP')³;

(ii) are contradictory in themselves and at odds with the BPD, and

(iii) violate provisions of the EC Treaty and a series of high-ranking principles of EC law such as the principle of undistorted competition, legal certainty and legitimate expectations, proportionality, equal treatment and non-discrimination, as well as the right to property and freedom to pursue a trade.

Moreover, the applicants claim that as participants in the second review regulation, they are entitled to benefit from procedural guarantees and data protection rights (i.e. exclusive use) for the data in their notifications and complete dossiers in all Member States in accordance with Article 12 of the BPD. However, according to the applicants, Article 4 of the SRR, by not requiring Member States to cancel biocidal product registrations corresponding to the applicants' notified active substance/product type combinations held by competing companies which do not participate in the review and have no access to the data submitted by the applicants for the purposes of the review, de jure and de facto violates the exclusive use right granted to the applicants by Article 12 of the BPD. In addition, the applicants submit that the defendant misused the powers entrusted upon it by the basic BPD, by deliberately implementing the BPD in a way which goes beyond the text of it and upsets the applicants' rights and expectations. Further, it is submitted that the contested measure violates EC Treaty provisions on fair competition by allowing companies which do not participate in the review and do not bear investment costs to remain on the market and regain a competitive advantage over the applicants.

The applicants finally raise a plea of illegality against Article 6(2) of the FRR and Articles 9(a), 10(3), 11 and 16(1) of the BPD.

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¹ - OJ 2007 L 325, p. 3

² - Commission Regulation (EC) No 2032/2003 of 4 November 2003 on the second phase of the 10-year work programme referred to in Article 16(2) of Directive 98/8/EC of the European Parliament and of the Council concerning the placing of biocidal products on the market, and amending Regulation (EC) No 1896/2000 (OJ 2003 L 307, p. 1)

³ - OJ 1998 L 123, p. 1