EN Official Journal of the European Union C 19/27

Action brought on 1 October 2004 by Arch Chemicals, Inc., and Arch Timber Protection Limited against the Commission of the European Communities

(Case T-400/04)

(2005/C 19/58)

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 1 October 2004 by Arch Chemicals Inc., Norwalk, Connecticut, USA and Arch Timber Protection Limited, Castleford, United Kingdom represented by K. Van Maldegem and C. Mereu, lawyers.

The applicants claim that the Court should:

— Order the defendant to respond to the applicants' request;

— Or, in the alternative, order the annulment of the European Commission's act D 341571(04);

— Order the defendant to compensate the applicants in the provisional amount of 1 euro for damages suffered as a result of the defendant's failure to comply with its obligations under Community law by failing to respond to the applicants, or, in the alternative, as a result of the European Commission's act D 341571(04), 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.

Pleas in law and main arguments

The applicants produce and sell biocide active substances and biocidal products. They notified several substances and are a participant in the review of these substances organised by Directive 98/8/EC (1) concerning the placing of biocidal products on the market, Regulation 1896/2000 (2) on the first phase of the programme referred to in Article 16(2) of Directive 98/8/EC and Regulation 2032/2003 (3) establishing the second phase of the programme referred to in Article 16(2) of Directive 98/8/EC.

Because, according to the applicants, their rights and expectations as a participant in the review were breached, they requested the defendant to adopt specific measures to remedy the alleged illegalities. The applicants claim that Regulation 1896/2000 and Regulation 2032/2003 adversely affect their data protection rights granted by Directive 98/8/EC. The applicants also submit that the regulations allow evaluators to conduct a comparative assessment between active substances, give predominance to hazard based assessments instead of risk assessment and allows taking into account data submitted by third parties.

The applicants claim in the first place that the defendant failed to define its position and did not adopt the necessary measures. In the alternative, they claim that the letter of the defendant rejecting the applicants' request should be annulled.

In support of their application, the applicants submit that the Commission has breached its legal responsibility to implement Directive 98/8/EC in accordance with the EC Treaty and the text of the directive itself, its obligations to respect the legal rights and expectations of participants, like the applicants and its duty to ensure, in accordance with the principles of sound administration, that the implementation by the Member States complies with the EC Treaty and the directive.

(1) Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning theplacing of biocidal products on the market (OJ L 123, p. 1)

(2) 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 L 228, p. 6)

(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 L 307, p. 1)