Notice for the OJ

 

    

Action brought on 27 February 2002 by Makhteshim-Agan Holding B.V. against the European Parliament and the Council of the European Union

    (Case T-57/02)

    Language of the case: English

An action against the European Parliament and the Council of the European Union was brought before the Court of First Instance of the European Communities on 27 February 2002 by Makhteshim-Agan Holding B.V., represented by Mr Philippe Logelain, Mr Koen Van Maldegem and Mr Claudio Mereu of McKenna & Cuneo, LLP, Brussels (Belgium).

The applicant claims that the Court should:

listnum "WP List 1" l 1order the partial annulment of Decision no. 2455/2001/EC of the European Parliament and of the Council of 20 November 2001 establishing the list of priority substances and priority hazardous substances in the field of water policy and amending Directive 2000/60/EC, so as to remove the applicant's substances - Atrazine, Chlorpyrifos, Diuron, Endosulfan, Isoproturon (IPU), Simazine and Trifluralin - from the measure;

listnum "WP List 1" \l 1order the defendants to pay all costs and expenses in these proceedings.

Pleas in law and main arguments:

The applicant in this case produces pesticides (plant protection products). The applicant contests the inclusion of certain of its products in the list of priority substances in the field of water policy. This list is established by the defendants in execution of Directive 2000/60/EC¹. The products listed are considered to present a risk to or via the aquatic environment and their emissions must be reduced. Furthermore, the contested decision indicates some of the applicant's products as priority substances 'under review', which will lead, according to the applicant, to a classification as priority hazardous substances. These substances pose a higher risk for the aquatic environment and their emissions must be eliminated.

In support of its application, the applicant claims that the defendants violated the procedural requirements of Directive 2000/60/EC. Article 16 (2) point (a) of this Directive provides that plant protection products are prioritised by a risk assessment procedure. The Defendants used however a simplified procedure called 'combined monitoring-based and modelling-based priority setting'. According to the applicants, the defendants had no jurisdiction to use this simplified procedure currently instead of the risk-based procedure laid down in Article 16 (2) point (a). According to the applicant, the conditions laid down in Article 16 of Directive 2000/60/EC for the use of a simplified procedure are not met. The applicant further points out that the risk assessments of its plant protection products under Directive 91/414/EEC² are still continuing. Therefore, the defendants acted ultra vires by not respecting the procedural and methodological requirements of the basic Directive 2000/60.

The applicant further contests the creating of a list of priority substances under review. According to the applicant this list is in fact a list of tentative priority hazardous substances. According to the applicant there is no legal basis to establish such a list. There is also no reasoning for the selection of these substances as priority substances under review.

The applicant further submits that the contested decision is in conflict with the more specific Council Directive 91/414/EEC on plant protection products. Therefore the defendants violate the principle lex specialis derogat lex generalis. This Directive imposes a specific risk assessment for plant protection products. According to the applicant, the result of this specific procedure should have been awaited before the classification of its products was undertaken.

According to the applicant, the defendants further violated Articles 174, 175 and 176 of the EC Treaty by ignoring available scientific and technical data. The contested measure also violates Article 2 of the EC Treaty. According to the applicant, the measure distorts competition since it does not affect other competing plant protection products.

The applicant submits also that there has been a violation of fundamental principles of Community law. The applicant submits that the defendants have violated Directive 2000/60 and therefore have infringed a superior law. The defendants also violated the more specific Directive 91/414/EEC, according to which some of the applicant's products are authorised for use. The contested measure also violates the principle of legal certainty and legitimate expectation since it frustrated the applicant's expectations that its products would be assessed in accordance with the procedure under Directive 91/414/EEC which is still current. The applicant further claims a violation of the principle of equal treatment, since the procedure used for the establishment of the contested measure has led to a result contrary to that reached by the procedure under Directive 91/414/EEC. The contested measure would, finally, infringe the principle of proportionality.

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¹ - Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy(OJ L 327 , 22/12/2000 P. 1)

² - Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ L 230 , 19/08/1991 P. 1)