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Action brought on 15 december 2008 - Bactria and Gutknecht v Commission

(Case T-561/08)

Language of the case: English

Parties

Applicants: Bactria Industriehygiene-Service Verwaltungs GmbH (Kirchheimbolanden, Germany), Jürgen Gutknecht (Kirchheimbolanden, Germany) (represented by: K. Van Maldegem and C. Mereu, lawyers)

Defendant: Commission of the European Communities

Form of order sought

declare the application admissible and well founded;

order the European Community to pay the damages suffered by the applicants as a result of (i) the unlawful adoption of Article 6(2) of the First Review Regulation together with the Second Review Regulation and Commission Regulation 1451/2007; or, in the alternative (ii) the Commission's failure to take the necessary measures to ensure that the applicants' data protection rights under the Directive 98/8/EC were maintained and free-riding avoided during the review programme, estimated at a total amount of EUR 3 912 569, or other amount as further established by the applicants in the course of these proceedings or by the Court ex aequo et bono;

in the alternative, rule on interlocutory judgment that the European Community is obliged to make reparation for the loss suffered and order the parties to produce to the Court within a reasonable period from the date of the judgment figures as to the amount of the compensation agreed between the parties or, failing agreement, order the parties to produce to the Court within the same period their submissions with detailed figures in support;

order the European Community to pay the applicants' compensatory interest at the default rate from the date of the losses suffered;

order the European Community to pay default interest of 8% or any other appropriate rate to be determined by the Court, calculated on the amount payable as from the date of the Court's judgment until actual payment; and

order the Commission to pay all costs of these proceedings.

Pleas in law and main arguments

By means of their application, the applicants claim compensation, pursuant to Article 235 EC, for the damages allegedly suffered form the adoption of Article 6(2) of Commission Regulation 1896/2000 of 7 September 2000¹ on the first phase of the 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 market² together with Commission Regulation 2032/2003³ and Commission Regulation 1451/2007⁴.

In the alternative, the applicants claim compensation for the damages allegedly suffered from the failure of the Commission to ensure protection of the data protection rights granted to notifiers pursuant to Article 12 of Directive 98/8/EC. They further submit that the damage suffered by the applicants as a result of the Commission's unlawful conduct consists of a significant reduction in the value of the first applicant's business and the lost profit (lucrum cessans) which the first applicant would have made by selling the biocidal products at issue an the active substances contained in those biocidal products but for the conduct of the Community.

In addition to the damage allegedly suffered by the second applicant as a shareholder of and therefore owner of the business of the first applicant, it is submitted that the second applicant has also suffered the loss of his livelihood. Finally, the applicants claim compensatory interest at the default rate from the date the losses claimed occurred.

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¹ - Commission Regulation (EC) No 1896/2000 of 7 September 2000 on the first phase of the programme referred to in Article 16(2) of Directive 98/8/EC of the European Parliament and of the Council on biocidal products (OJ 2000 L 228, p. 6)

² - 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 (OJ 1998 L 123, p. 1)

³ - 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)

⁴ - 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 (OJ 2007 L 325, p. 3)