# C_2005093EN.01003101.xml

| 16.4.2005 | EN | Official Journal of the European Union | C 93/31 |
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16.4.2005

EN

Official Journal of the European Union

C 93/31

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Action brought on 31 January 2005 by Bayer CropScience AG, Makhteshim Agan Holding BV, Alfa Agricultural Supplies S.A. and Aragonesas Agro S.A. against the Commission of the European Communities

(Case T-34/05)

(2005/C 93/61)

Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 31 January 2005 by Bayer CropScience AG, established in Monheim (Germany), Makhteshim Agan Holding BV, established in Amsterdam (The Netherlands), Alfa Agricultural Supplies S.A. established in Athens (Greece) and Aragonesas Agro S.A. established in Madrid (Spain), represented by C. Mereu and K. Van Maldegem, lawyers.

The applicants claim that the Court should:

| — | declare that the defendant has failed to comply with his obligations under Community law to review scientific data submitted by the applicants for the review of endosulfan under Directive 91/414/EEC and to grant them a due process during the review; |
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declare that the defendant has failed to comply with his obligations under Community law to review scientific data submitted by the applicants for the review of endosulfan under Directive 91/414/EEC and to grant them a due process during the review;

| — | order the defendant to comply with his obligations under Community law and act as requested by the applicants by reviewing and considering all data submitted for the endosulfan review and by granting them a due process, including the right of defence and a fair hearing; |
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order the defendant to comply with his obligations under Community law and act as requested by the applicants by reviewing and considering all data submitted for the endosulfan review and by granting them a due process, including the right of defence and a fair hearing;

| — | 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

By letter dated 24 September 2004 the applicants requested the Commission to review scientific data submitted by the applicants to the evaluating authority for the review and authorisation, under Directive 91/414/EC (1), of endosulfan, the active substance of their plant protection product. They also asked to be allowed to address and respond to issues raised by the evaluators during the last stages of the review without any prior consultation with the applicants. By letter dated 26 November 2004 the Commission replied that its services were in the process of preparing a legislative proposal concerning the non-inclusion of endosulfan in Annex I of Directive 91/414. This will result in a ban on the use of this substance.

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In support of its application the applicants contend that by failing to review all pertinent and state-of-the-art data submitted by the applicants the Commission violated Articles 95 (3) and 152 (1) EC. They further claim that by failing to act on the applicants request the Commission violated the principle of sound administration enshrined in Article 211 EC as well as their rights of defence, the right to a fair hearing, the duty to provide a statement of reasons and the principle of equal treatment.

The applicants further consider that the Commission's failure to review all the data they submitted neither achieves the desired objective of assessing the safety of plant protection products nor constitutes the least restrictive means to achieve such objectives, since the resulting decision not to include endosulfan in Annex I would cause it to be withdrawn from the EU market with irreparable commercial consequences for the applicants. On this basis the applicants consider the Commission violated the principles of proportionality, of legitimate expectations and of legal certainty. Finally, the applicants submit that by failing to act the Commission encroaches upon their right to conduct business activities and interferes with their right of property.

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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, p. 1.

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