Judgment — ECLI:EU:T:2009:392
Date: 2009-10-07
Language of the case: English
Court formation: Sixth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment
Concepts: Plant protection products
Procedure: Action for annulment - unfounded
Origin: Italy

summary dossier and a complete dossier, in accordance with Article 2 of Commission Regulation (EC) No 933/94 of 27 April 1994 laying down the active substances of plant protection products and designating the rapporteur Member States for the implementation of Regulation No 3600/92 (OJ 1994 L 107, p. 8), as amended by Commission Regulation (EC) No 2230/95 of 21 September 1995 (OJ 1995 L 225, p. 1), and Article 6 of Regulation No 3600/92, as supplemented by Commission Regulation (EC) No 2266/2000 of 12 October 2000 (OJ 2000 L 259, p. 27). At the end of that procedure Directive 2005/53 was adopted, which included the substance in question in Annex I to Directive 91/414 and prescribed a transitional period before its inclusion took effect. In the present case, the inclusion of chlorothalonil in Annex I to Directive 91/414 was thus duly followed by a transitional period allowing the national authorities to examine existing national authorisations. 74 Accordingly, the fact that the contested directive does not prescribe such a transitional period does not constitute a breach of the provisions relied upon by the applicant. 75 As regards, in the second place, the applicant’s argument relating to the Commission’s practice, it is to be noted that a mere administrative practice that is not contrary to the legislation in force and does not involve the exercise of discretion may give rise to a legitimate expectation on the part of the persons concerned (see Case T-310/00 MCI v Commission [2004] ECR II‑3253, paragraph 112, and the case-law cited). 76 In the present case, the Commission states that its consistent practice is that it requires the Member States to take certain measures within a period of six months from an active substance’s inclusion in Annex I to Directive 91/414. 77 The Commission’s practice of prescribing such a period in order to permit the parties concerned to prepare themselves to meet the new requirements and the Member States to review existing authorisations is also apparent from recitals 9 and 10 in the preamble to Directive 2005/53. 78 However, such a practice, first, relates above all to the Member States, upon which it confers obligations, in particular as regards the period for review available to them, and second, concerns the initial inclusion of an active substance in Annex I to Directive 91/414. 79 It is accordingly clear that the applicant is also wrong in relying upon the Commission’s practice in order to assert that the Commission was under an obligation to prescribe in the present case a transitional period for the purpose of reviewing existing national authorisations. The practice to which the applicant refers does not concern the case in point. 80 Consequently, in not prescribing a transitional period in the contested directive for the purpose of review of existing national authorisations, the Commission infringed neither Article 8(2) of Directive 91/414 nor Article 8(3)(a) of Regulation No 3600/92 and did not depart from its previous practice. – The alleged breach of the principles of non-retroactivity, legal certainty, the protection of legitimate expectations and equal treatment 81 The principle of legal certainty requires Community rules binding on individuals to be clear and precise so that they may know without ambiguity what their rights and obligations are and are in a position to take steps accordingly (Case 169/80 Gondrand and Garancini [1981] ECR 1931, paragraph 17). 82 Also, as a general rule, the principle of legal certainty precludes a Community measure from taking effect from a point in time before its publication, save exceptionally where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected (Case 98/78 Racke [1979] ECR 69, paragraph 20; see also, with regard to the retroactive effect of a directive, Case C-331/88 Fedesa and Others [1990] ECR I‑4023, paragraph 45). 83 It is accordingly to be established in the present case, first, whether the purpose to be achieved justifies the retroactivity of the contested directive and, second, whether the applicant’s legitimate expectations were duly respected and whether the applicant was able to know without ambiguity what its rights and obligations were and to take steps accordingly. 84 As regards the first condition, it is clear from recitals 1 and 2 in the preamble to the contested directive that the Commission amended the specification for chlorothalonil in order to take account of the new FAO specification, published after Directive 2005/53 was adopted. This FAO specification, repealing the specification which had been in force on the date when Directive 2005/53 was adopted, amended the requirement relating to the HCB content, increasing the limit from 0.01 to 0.04 g/kg. 85 The Commission indicated in recital 4 in the preamble to the contested directive that, ‘since Directive 2005/53 … require[d] Member States to apply its Article 2 from 1 September 2006, the amended specification for chlorothalonil should also apply from this date’. 86 It is apparent from those statements that, in providing that the amended specification was to have retroactive effect, the Commission intended to prevent the Member States from being required to apply, even if only very briefly, the stricter specification prescribed by Directive 2005/53. Given this objective, it had to be laid down that the amended specification for chlorothalonil would be applicable from the date laid down for application of the initial specification. 87 It must therefore be concluded that, in the present case, the first condition laid down by the case-law cited in paragraph 82 above is met, that is to say, the purpose to be achieved demanded that the contested directive provide for retroactive application of the new, less strict, specification. Nor does the applicant challenge the retroactivity of the contested directive in so far as it set a new specification that is less strict. 88 As regards the second condition, namely that the legitimate expectations of those concerned are respected, it should be pointed out at the outset that, since the amended specification laid down by the contested directive had the effect solely of making the conditions upon which chlorothalonil was included less exacting, its retroactive effect, as such, was not capable of interfering with the legitimate expectations of the economic operators concerned. 89 However, the applicant submits that the contested directive infringes the principles of legal certainty and of the protection of legitimate expectations in that it does not set a transitional period enabling the applicant to adapt to the new requirements and entailing an obligation on the Member States to review existing national authorisations. 90 In that regard, it is to be remembered (see paragraphs 70 to 80 above) that neither the applicable provisions nor the Commission’s practice require the Commission to prescribe such a transitional period here. 91 Nor has the applicant adduced evidence or arguments such as to prove that the Commission caused it to entertain legitimate expectations that amendment of the specification would be followed by the establishment of a new transitional period. Inasmuch as the applicant is itself at the origin of that amendment (see paragraphs 23 and 24 above) which reduces the requirements for authorisation of its products, it cannot be contrary to the principles of legal certainty and of the protection of legitimate expectations not to prescribe a transitional period in order to enable the applicant to adapt to the new requirements. 92 Here, any product complying with the specification under Directive 2005/53 meets, a fortiori, the specification under the contested directive, so that adaptation, on the part both of the Member States and of the applicant, to the new requirements does not seem to demand particular measures or efforts justifying a legitimate expectation that a transitional period would be laid down for that purpose. 93 More specifically from the point of view of compliance with the principle of legal certainty, Directive 2005/53 and the clear and precise provisions applicable at the time, which were not repealed by the contested directive, enabled the applicant to know without ambiguity the extent of the obligations which they imposed upon it. It could take steps accordingly and, in particular, if it wished to retain its existing authorisations, submit a complete dossier compiled in accordance with the requirements of Annex II to Directive 91/414. During the transitional period which followed the adoption of Directive 2005/53, it was clearly in the applicant’s interest to submit such a dossier or to demonstrate access to such a dossier in order to be able to retain its existing authorisations. 94 Pursuant to Article 3(1) of Directive 2005/53, the applicant was forewarned that if it did not satisfy that obligation, which is independent of the obligation relating to a product’s conformity to the Community specification, its authorisations would be withdrawn. 95 Secondarily and having more specific regard to the context, it is also apparent from the facts of the case that the applicant was aware of the fact that the Commission was envisaging amending the specification for chlorothalonil to take account of the specification adopted by the FAO in December 2005 and that that amendment would come within the framework of the review conducted in accordance with Article 3(1) of Directive 2005/53. 96 The procedure which preceded the adoption of the contested directive had been initiated on the basis of the information provided by the applicant on 16 December 2005 and the applicant was informed both of the conclusions of the report drawn up by the rapporteur Member State in April 2006, proposing that the specification established by Directive 2005/53 be amended, and of the adoption of the proposal to this effect by the Committee on 13 and 14 July 2006. 97 It is apparent from the letter sent by the authorities of the United Kingdom of Great Britain and Northern Ireland of 28 July 2006 (see paragraph 31 above), adduced by the applicant, and from the letters sent by the authorities of Ireland of 30 August 2006 and the Kingdom of Belgium of 7 September 2006, adduced by the Commission, that the applicant had certain authorisations withdrawn not for want of conformity with the specification for chlorothalonil prescribed by Directive 2005/53, but because it failed to submit a dossier satisfying the requirements of Annex II to Directive 91/414 or demonstrate access to such a dossier. 98 The applicant cannot therefore claim a right to fill the gaps in its dossier in a fresh examination of its authorisations during a fresh transitional period, when it could fully appreciate the interest in submitting a dossier that complied with the requirements of Annex II to Directive 91/414 during the transitional period which followed the adoption of Directive 2005/53. It is to be noted in this regard that the requirements relating to the submission of that dossier remained unchanged. Any dossier compliant with the requirements of Annex II to Directive 91/414 was so under Directive 2005/53 and remained so under the contested directive. As regards both the specification and possession of a compliant dossier, therefore, the Commission had no reason, when adopting the contested directive, either to oblige the Member States to undertake a fresh examination of existing authorisations or to prescribe a transitional period for that purpose. 99 It follows that the retroactive application of the new specification introduced by the contested directive does not infringe the principles of legal certainty and of the protection of legitimate expectations. It should be added that, contrary to the applicant’s assertions, the contested directive is not devoid of practical effect either. It enables existing authorisations for products conforming to the new specification which it introduces to be maintained, provided that the holder of the authorisation has satisfied the other requirements laid down by Directive 2005/53. 100 As regards the principle of equal treatment, this principle is breached only where comparable situations are treated differently or different situations are treated in the same way, unless a distinction is objectively justified (Case C-174/89 Hoche [1990] ECR I‑2681, paragraph 25). 101 In the present case, the applicant’s arguments essentially amount to a comparison of different situations. The inclusion of a substance in Annex I to Directive 91/414 is not comparable with mere amendment of the specification for that substance, which has already been included in the annex, and it was thus not obligatory for the contested directive to lay down the same transitional arrangements as Directive 2005/53, which moreover was not repealed. 102 Furthermore, since the applicant could, like other producers, benefit from the transitional period which ensued after the adoption of Directive 2005/53 and thus after the inclusion of chlorothalonil in Annex I to Directive 91/414 and in particular submit, in this context, a dossier that complied with the requirements of Annex II to Directive 91/414 to the national authorities, it cannot plead unequal treatment vis-à-vis other producers of that substance or any other substance at the time of its inclusion in Annex I to that directive. Nor has the applicant shown that transitional periods have been laid down by the Commission in favour of other producers when the specification for a substance already included in Annex I to Directive 91/414 has been amended. 103 Consequently, the Commission did not infringe the principle of equal treatment by not prescribing a transitional period in the contested directive for the purposes of the review of existing authorisations that is provided for in Article 3(1) of Directive 2005/53. 104 It follows that no breach of the general principles of law that are referred to by the applicant can be found. – The alleged breach of the duty to state reasons 105 It is settled case-law that the statement of reasons required by Article 253 EC must disclose in a clear and unequivocal fashion the reasoning followed by the Community authority which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure for the purpose of defending their rights and to enable the Community judicature to exercise its power of review (see Case T-89/00 Europe Chemi-Con (Deutschland) v Council [2002] ECR II‑3651, paragraph 65, and the case-law cited). 106 As regards an alleged failure to state reasons that relates to the provision of the contested directive establishing its temporal application, first, recitals 1, 2 and 4 in the preamble to the contested directive, which are cited in paragraphs 84 and 85 above, indicate clearly the reasons why the Commission gave the amended specification retroactive effect. 107 Second, the Commission was not obliged to state the reasons why it did not prescribe a transitional period for the review of national authorisations. As is apparent from the foregoing findings, the Commission was not required to prescribe such a transitional period by the applicable provisions, its previous practice or any of the general principles of law relied upon by the applicant. 108 Accordingly, the applicant is wrong in its contention that the contested directive is vitiated by a failure to state reasons. 109 In view of all the foregoing, this action must be dismissed. Costs 110 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission. On those grounds, THE COURT OF FIRST INSTANCE (Sixth Chamber) hereby: 1. Dismisses the action; 2. Orders Vischim Srl to pay the costs. Meij Dehousse Vadapalas Delivered in open court in Luxembourg on 7 October 2009. [Signatures] * Language of the case: English.