Action brought on 18 December 2006 - Makhteshim Agan Holding and others v Commission

(Case T-393/06)

Language of the case: English

Parties

Applicants: Makhteshim Agan Holding BV (Amsterdam, The Nederlands), Makhteshim Agan Italia Srl (Bergamo, Italy) and Magan Italia Srl (Bergamo, Italy) (represented by: C. Mereu and K. Van Maldegem, lawyers)

Defendant: Commission of the European Communities

Form of order sought

Annulment of Commission Decision D/531125, of 12 October 2006;

order the defendant to comply with its obligations under Community law and review and use all available data, including human data, to ensure the inclusion of azinphos-methyl in Annex I to the PPPD;

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

Pleas in law and main arguments

By means of their application, the applicants seek annulment of Commission Decision D/531125 set forth in a letter of 12 October 2006, addressed to the agency within the rapporteur Member State responsible for the review of the active substance azinphos-methyl under the framework of Directive 91/414/EEC concerning the placing of plants protection products on the market (hereinafter, the "PPPD")¹, in which the defendant states it will not take a decision on the approval and inclusion of the active substance concerned in Annex I of the said directive and further indicates that in the absence of approval at Community level by the date laid down in Article 8, paragraph 2, of the PPPD, there would no longer be any legal basis for keeping the substance on the market.

The applicants claim that the contested decision amounts to a de facto and de jure ban of azinphos-methyl, insofar as it unambiguously states that no further decision on the inclusion of the substance in Annex I of the PPPD will be taken and in that it aims to achieve an azinphos-methyl marketing ban through the defendant's inactivity until the expiration of the set time-limit for approval.

The applicants further submit that the contested decision jeopardises their rights to a fair consideration of the substance at stake in the light of state-of-the-art scientific studies submitted by them. In addition, by depriving the applicants of their right to re-register and continue selling their products in the Member States, the defendant allegedly breached the principle of proportionality as well as their fundamental right to carry out their business activities thereby interfering with their property right.

Moreover, the applicants contend that the contested decision is vitiated by substantial procedural flaws. Precisely, the defendant's lack of initiative in making a proposal regarding the inclusion of azinphos-methyl in Annex I to the PPPD, as well as the marketing ban it aims to achieve by its inactivity, violate Article 5, paragraph 2, of Council Decision 1999/468/EC² and Article 8, paragraph 2, of the PPPD.

Finally, should the Court consider that the contested decision is not a challengeable act under Article 230, paragraph 4, EC, the applicants submit that their action should still be declared admissible under Article 232 EC, insofar as the defendant's inactivity constitutes an unlawful failure to act.

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¹ - OJ 1991 L 230, p. 1

² - Council Decision 1999/468/EC laying out the procedures for the exercise of implementing powers conferred on the Commission, OJ (1999) L 184, p. 23