# C_2006036EN.01003302.xml

| 11.2.2006 | EN | Official Journal of the European Union | C 36/33 |
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11.2.2006

EN

Official Journal of the European Union

C 36/33

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Action brought on 25 November 2005 — Vischim v Commission

(Case T-420/05)

(2006/C 36/71)

Language of the case: English

Parties

Applicant: Vischim Srl (Milan, Italy) [represented by: C. Mereu, K. Van Maldegem, lawyers]

Applicant:

Defendant: Commission of the European Communities

Defendant:

Form of order sought

| — | Order the partial annulment of Commission Directive 2005/53/EC in so far as it includes entry no. 102, corresponding to the plant protection active substance chlorothalonil, in Annex I to the Plant Protection Products Directive (‘PPPD’), with a purity specification that does not correspond to the specification notified to and evaluated by the Commission and the Standing Committee on Plant Health; in the alternative, immediately to modify entry no. 102 to reflect the new FAO specification of November 2005; |
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Order the partial annulment of Commission Directive 2005/53/EC in so far as it includes entry no. 102, corresponding to the plant protection active substance chlorothalonil, in Annex I to the Plant Protection Products Directive (‘PPPD’), with a purity specification that does not correspond to the specification notified to and evaluated by the Commission and the Standing Committee on Plant Health; in the alternative, immediately to modify entry no. 102 to reflect the new FAO specification of November 2005;

| — | order the partial annulment of the Review Report underlying the inclusion of chlorothalonil in Annex I to Directive 91/414 insofar as it does not recognise the status of 'main data submitter' to the applicant and fails to list the applicant's data in Appendix IIIA thereto; |
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order the partial annulment of the Review Report underlying the inclusion of chlorothalonil in Annex I to Directive 91/414 insofar as it does not recognise the status of 'main data submitter' to the applicant and fails to list the applicant's data in Appendix IIIA thereto;

| — | order the defendant to comply with its obligations under Community law and act on the applicant's request; |
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order the defendant to comply with its obligations under Community law and act on the applicant's request;

| — | order the defendant to compensate the applicant in the provisional amount of 1 (one) Euro for damages suffered as a result of the contested measure, or, in the alternative, as a result of the Defendant's failure to comply with its obligations under Community law by failing to respond to the applicant, as well as any applicable interests, pending the exact calculation and determination of the exact amount; |
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order the defendant to compensate the applicant in the provisional amount of 1 (one) Euro for damages suffered as a result of the contested measure, or, in the alternative, as a result of the Defendant's failure to comply with its obligations under Community law by failing to respond to the applicant, as well as any applicable interests, pending the exact calculation and determination of the exact amount;

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

Pleas in law and main arguments

The applicant produces chlorothalonil -based plant protection products and, therefore, has an interest in securing the inclusion of that substance in Annex I of the PPPD (1), which would allow it to continue with the production of its product. It thus contests Directive 2005/53 (2) insofar as it includes this substance in Annex I but with a specification that would operate to exclude the product the applicant produces.

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In support of this application the applicant first invokes a number of alleged procedural flaws of the contested measure, as well as a number of substantive legal flaws. From a procedural standpoint, the applicant contends that it was unlawfully rejected as a main data submitter and that its studies were unlawfully removed from Appendix IIIA to the review report. In this context, it also alleges that the current version of that report cannot have been approved by the Standing Committee, since it is posterior to the latter's meeting approving the review report. It also alleges that it was excluded from certain critical meetings and/or exchanges, in violation of procedural safeguards provided for in the PPPD and Regulation 3600/92 (3) and that its chlorothalonil specification was unlawfully withdrawn from Annex I to the PPPD despite the reliance on its data. The applicant also challenges the Commission's decision to rely on a new FAO specification for changing the chlorothalonil specification under the PPPD, submitting that such a change was not scientifically necessary.

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The applicant further contends that its own chlorothalonil specification meets the requirements of Article 5 and therefore the Commission was obliged, under this latter provision as well as Article 95 EC, to include it in Annex I. It also considers that the principle of subsidiarity was violated in that the Commission followed a ‘maximal standard’ for chlorothalonil, violating the Member States' prerogative when making re-registration decisions under the PPPD. Also, the applicant invokes the violation of the principle of sound administration enshrined in Article 211 EC as well as the violation of Article 13 of the PPPD and of the applicant's legal rights and legitimate expectations.

Moreover, the applicant contends that the contested measure violates its rights to a fair hearing, its right of defence, the Commission's duty to state reasons and fundamental Community law principles such as proportionality, legitimate expectations, legal certainty and equal treatment. It also allegedly violates the applicant's right to property since it deprives the applicant of its right to conduct business activities. Further, the applicant considers that the contested measure distorts competition to the extent that it effectively creates a monopoly for a competitor's product, allegedly the only one conforming to the specification adopted.

In the alternative, the applicant attacks the Commission's alleged failure to act upon its formal request to either formally adopt the contested measure with an amended chemical identity/purity definition satisfying the applicant's submissions or to refrain from adopting it in its current form pending a decision on a different chemical identity/purity definition.

The applicant finally requests compensation for the damages it allegedly incurred due to its inability to continue marketing of its plant protection products based on chlorothalonil.

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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, 19/08/1991, p. 1.

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(2)  Commission Directive 2005/53/EC of 16 September 2005 amending Council Directive 91/414/EEC to include chlorothalonil, chlorotoluron, cypermethrin, daminozide and thiophanate-methyl as active substances, OJ L 241, 17/09/2005, p. 51.

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(3)  Commission Regulation (EEC) No 3600/92 of 11 December 1992 laying down the detailed rules for the implementation of the first stage of the programme of work referred to in Article 8 (2) of Council Directive 91/414/EEC concerning the placing of plant protection products on the market, OJ L 366, 15/12/1992, p. 10, as last amended by Regulation (EC) No 2266/2000, OJ L 259, 13/10/2000, p. 27.

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