Action brought on 19 December 2007 - Dow Agrosciences BV and Others v Commission

(Case T-470/07)

Language of the case: English

Parties

Applicants: Dow Agrosciences BV (Rotterdam, Netherlands), Dow AgroSciences Ltd (Hitchin, United Kingdom), Dow AgroSciences SAS (Mougins, France), Dow AgroSciences Export SAS (Mougins, France), Dow AgroSciences Italia Srl (Milan, Italy), Dow AgroSciences Iberica SA (Madrid, Spain), Dow AgroSciences Vertriebsgesellschaft mbH (Neusiedl am See, Austria), Dow AgroSciences LLC (Indianapolis, United States) (represented by: K. Van Maldegem, C. Mereu, lawyers)

Defendant: Commission of the European Communities

Form of order sought

To order the annulment of Commission Decision 2007/619/EC;

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

Pleas in law and main arguments

The applicants seek the annulment of Commission Decision 2007/619/EC of 20 September 2007 concerning the non-inclusion of 1,3-dichloropropene in Annex I to Council Directive 91/414/EEC¹ ("Directive 91/414") and the withdrawal of authorisations for plant protection products containing that substance.

According to the applicants, the contested decision is unlawful because of the following reasons:

(a) it infringes essential procedural requirements, as it is based on a report from the European Food Safety Authority ("EFSA") that allegedly infringes Article 8(7) of Commission Regulation 451/2000²; as the defendant infringed Article 8(8) of the above-mentioned regulation and as the contested decision fails to comply with the applicable legislative procedure, infringing thus, Articles 5 EC, 7 EC and Article 5 of Decision 1999/468³;

(b) it contains manifest errors of appreciation because it decides on the non-inclusion of 1,3-dichloropropene in Annex I to Council Directive 91/414/EEC without it being established that the substance poses an unacceptable risk to human health or the environment and does not meet the requirements of Article 5(1) and 5(2) of Directive 91/414 for inclusion in Annex I;

c) it breaches general principles of Community law and, in particular, (i) the principles of legal certainty and legitimate expectations, (ii) the principle of proportionality, (iii) the principle of equal treatment, (iv) the principle of sound administration, and (v) the applicants' right to defence and right to a fair hearing;

(d) it infringes the EC Treaty and the rule of law related to its application, and in particular, (i) Article 13 of Directive 91/414, as well as (ii) Article 95 EC and Articles 4 and 5 of the above-mentioned directive.

The applicants also raise a plea of illegality pursuant to Article 241 EC against Article 20 of Commission Regulation 1490/2002⁴ which, according to their allegations, substantially altered their legal rights of expectations through the amendment of Regulation 451/2000 so as to provide mandatory involvement of EFSA in the review of the substance concerned.

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

² - Commission Regulation (EC) No 451/2000 of 28 February 2000 laying down the detailed rules for the implementation of the second and third stages of the work programme referred to in Article 8(2) of Council Directive 91/414/EEC (OJ L 55, p. 25)

³ - Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission ( OJ L 184, p. 23)

⁴ - Commission Regulation (EC) No 1490/2002 of 14 August 2002 laying down further detailed rules for the implementation of the third stage of the programme of work referred to in Article 8(2) of Council Directive 91/414/EEC and amending Regulation (EC) No 451/2000 (Text with EEA relevance) ( OJ L 224, p. 23)