# C_2006074EN.01002801.xml

| 25.3.2006 | EN | Official Journal of the European Union | C 74/28 |
| --- | --- | --- | --- |

25.3.2006

EN

Official Journal of the European Union

C 74/28

---

Action brought on 9 January 2006 — Denmark v Commission

(Case T-5/06)

(2006/C 74/53)

Language of the case: Danish

Parties

Applicant: Kingdom of Denmark (Copenhagen, Denmark) (represented by: Jørgen Molde, Agent)

Applicant:

Defendant: Commission of the European Communities

Defendant:

Form of order sought

The applicant claims that the Court should:

| — | annul Commission Decision 2005/717/EC of 13 October 2005 amending for the purposes of adapting to the technical progress the Annex to Directive 2002/95/EC of the European Parliament and of the Council on the restriction of the use of certain hazardous substances in electrical and electronic equipment (1), so far as points 1 and 2 of the Annex relating to DecaBDE in polymeric applications are concerned; |
| --- | --- |

—

annul Commission Decision 2005/717/EC of 13 October 2005 amending for the purposes of adapting to the technical progress the Annex to Directive 2002/95/EC of the European Parliament and of the Council on the restriction of the use of certain hazardous substances in electrical and electronic equipment (1), so far as points 1 and 2 of the Annex relating to DecaBDE in polymeric applications are concerned;

1

| — | order the Commission to pay the costs of the proceedings. |
| --- | --- |

—

order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

By the contested decision the Commission exempted the material DecaBDE in polymeric applications from the prohibition contained in Directive 2002/95/EC of the European Parliament and of the Council of 27 January 2003 on the restriction of the use of certain hazardous substances in electrical and electronic equipment (2) (‘the basic directive’).

2

The Danish Government submits that the contested decision is defective in law inasmuch as DecaBDE in polymeric applications is exempted from the prohibition in the basic directive, contrary to the conditions laid down therein, on the grounds that

| — | such an exemption is not necessary in the light of scientific and technical progress; |
| --- | --- |

—

such an exemption is not necessary in the light of scientific and technical progress;

| — | the Commission did not exempt a specific application of the material from the prohibition but in practice introduced an across-the-board exemption for all polymeric applications; |
| --- | --- |

—

the Commission did not exempt a specific application of the material from the prohibition but in practice introduced an across-the-board exemption for all polymeric applications;

| — | the Commission failed to record that no possibilities for substituting or eliminating DecaBDE in polymeric applications have been found, which the Danish Government submits it ought to have done; and |
| --- | --- |

—

the Commission failed to record that no possibilities for substituting or eliminating DecaBDE in polymeric applications have been found, which the Danish Government submits it ought to have done; and

| — | the Commission did not carry out an assessment to determine whether the negative burden in terms of environment, health and/or consumer protection which would result from substitution would be greater than the potential advantages in terms of environment, health and/or consumer protection. |
| --- | --- |

—

the Commission did not carry out an assessment to determine whether the negative burden in terms of environment, health and/or consumer protection which would result from substitution would be greater than the potential advantages in terms of environment, health and/or consumer protection.

The Danish Government also submits that the Commission attached weight to an unlawful criterion, namely a general risk assessment of the exempted material DecaBDE, and that the decision is vitiated by a fundamental formal defect inasmuch as the Commission failed to provide adequate reasons as to why it took the view that the conditions for exempting DecaBDE in polymeric applications from the prohibition in the basic directive had been satisfied.

---

(1)  OJ 2005 L 271, p. 48.

1

(2)  OJ 2003 L 37, p. 19.

2

---