EN Official Journal of the European Union C 106/72

Action brought on 17 February 2004 by Arch Chemicals, Inc., and Arch Timber Protection Limited against the Commission of the European Communities

(Case T-75/04)

(2004/C 106/145)

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

The applicants claims that the Court should:

— order the annulment of Article 3 (and annex II), Article 4(2), Article 5(3), Article 10(2), second paragraph, Article 11(3), Article 13 and Article 14(2) of 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;

— declare the illegality and the inapplicability vis-à-vis the applicant of Articles 9(a), 10(3), 11 and 16(1) of Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market;

— declare the illegality and the inapplicability vis-à-vis the applicant of Article 6(2) of 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;

— order the defendant to compensate the applicant in the provisional amount of 1Euro for damages suffered as a result of the adoption and entry into force of the contested measure, as well as any applicable interest, 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 are producers of biocide active substances and of biocidal products, namely, non-agricultural pesticidal products, containing these active substances. The applicants hold marketing authorisations in several Member States and many of their products are protected through intellectual property rights.

In accordance with Directive 98/8/EC (1) and Commission Regulation (EC) No 1896/2000 (2), the applicants notified their active substances and product type combinations and, therefore, became participants in the review programme within the meaning of Commission Regulation (EC) No 2032/2003 (3). Under the rules of the second stage of the review programme, the applicants are obliged to develop expensive proprietary data, such as scientific studies and risk assessments, and submit these data to a designated Rapporteur Member State.

The applicants seek the annulment of Article 4(2) of Regulation No 2032/2003 because it fails to set a deadline by which companies other than the participants' can no longer market biocidal products notified by participants and listed in annex II to the regulation. Furthermore, according to the applicants, Article 3(2) and annex II of Regulation No 2032/2003 fail to list the names of the applicants as participants for their notified active substances and product type combinations. Also, the applicants seek the annulment of Article 5(3) and preamble 10 of Regulation No 2032/2003 because it allows companies who are not participants, to apply for the inclusion of an active substance or product type combination under more favourable conditions. The applicants also contest Article 10(2), second paragraph, of Regulation No 2032/2003 because it allows the Rapporteur Member State to take into account additional information submitted by others. The applicants also object to the fact that Article 11(3) and preamble 18 allow the defendant to conduct unilaterally a comparative assessment of active substances and product type combinations before the conclusion of the review. Article 13 and preamble 20 are being contested by the applicants in that they allow the defendant to suspend or stop the review on the basis of a proposal of the defendant submitted under Directive 76/769/EEC (4). Hereby, a hazard-based assessment would be preferred over the sector specific risk assessment of Directive 98/8/EC concerning the placing of biocidal products on the market. Finally, the applicants seek annulment of Article 14(2) because it retroactively and without a proper reasoning amends the notification rules contained in Regulation No 1896/2000, thus changing a decisive factor for the applicants for participation in the review programme.

In support of their application, the applicants submit that the defendant misused its powers under Directive 98/8/EC by implementing the directive in a way that goes beyond the text of the directive and changes the applicants' rights and expectations. The applicants furthermore claim that the defendant had no competence to introduce in Regulation No 2032/2003 the contested provisions without consulting the European Parliament and the Council. According to the applicants, Directive 98/8/EC should have been modified in order to introduce these provisions.

The applicants also submit that the defendant violated the EC Treaty and principles of Community Law, such as the Treaty provisions on fair competition, the principles of undistorted competition, legal certainty and legitimate expectations, proportionality, non-discrimination, the right to property, the right to pursue a trade and, finally, the supremacy of international agreements, specifically the protection of intellectual property rights under the TRIPs agreement.

In support of their application, the applicants also submit a plea of illegality against Article 6(2) of Regulation No 1896/2000 and Articles 9(a), 10(3), 11 and 16(1) of Directive 98/8/EC.

The applicants state that Article 6(2) of Regulation No 1896/2000 forms the basis of the contested Articles 3 and 4(2), as well as annex II, of Regulation No 2032/2003 and sets the rule that notified active substance or product type combinations can be freely marketed by any other company which has neither access to the applicants' protected data, nor has developed an equivalent data set. The applicants claim that Article 6(2) of Regulation No 1896/2000 ignores the data protection provisions of Directive 98/8/EC and that the defendant misused its powers and lacked the competence to adopt it.

The applicants state furthermore that Articles 9(a), 10(3) and 11 of Directive 98/8/EC are related to the contested Article 3 and annex II of Regulation No 2032/2003. According to the applicants, Article 9(a) of Directive 98/8/EC is illegal because it discriminates between active substances that were on the market before 14 May 2000 and active substances that were not on the market on that date, therefore causing unfair competition. Furthermore, the applicants submit that Articles 9(a), 10(3), 11 and 16(1) of Directive 98/8/EC are inconsistent with other provisions of that directive. Specifically, they fail to establish, contrary to Article 12 and 27 of Directive 98/8/EC, a transparent link between the applicants and their notified active substance or product type combinations. Finally, the applicants claim that Article 16(1) of Directive 98/8/EC should be declared illegal so that Member States are no longer allowed to continue applying their pre-existing legislation for maintaining biocidal product registrations that are not supported by a notification at the Community level.

(1) Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing 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).

(4) Council Directive 76/769/EEC of 27 July 1976 on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations (OJ L 262, p. 201).