Case T-57/02: Action brought on 27 February 2002 by Makhteshim-Agan Holding B.V. against the European Parliament and the Council of the European Union
Date: 2002-06-15
Institutions: Court of First Instance
Subjects: Council of the European Union, European Parliament, action for annulment (EU), agricultural product, dangerous substance, health risk, infringement of EU law, pharmaceutical product, restriction on competition, water pollution

15.6.2002

EN

Official Journal of the European Communities

C 144/47

The applicants also raise the point of a violation of the
principles of consistency and uniform application of Com-
munity law, of proportionality and of legal certainty and
legitimate expectations.

tion product active substance trifluralin in the list of priority
substances which will be restricted in the EU insofar as it
entails direct or indirect ‘discharges, emissions and losses’ in
the aquatic environment during normal agricultural use.

In addition, the applicants claim that the contested measure
also departs from the letter and the spirit of the international
agreements to which it expressely refers (OSPAR, HELCOM
and the Barcelona Convention).

The pleas in law and main arguments are similar to those
relied upon in Case T-45/02 (DOW AgroSciences and Others -
v- Parliament and Council (2).

(1) OJ L 331, of 15.12.2001, p. 1.
(2) OJ L 170, of 25.6.1992, p. 40.
(3) OJ L 327, of 22.12.2000, p. 1.

(1) OJ [2001] L 331, p. 1.
(2) See p. 46 of the present Official Journal.

Action brought on 26 February 2002 by Finchimica,
S.p.A. and I.Pi.Ci. — Industria Prodotti Chimici, S.p.A.
against the European Parliament and the Council of the
European Union

Action brought on 27 February 2002 by Makhteshim-
Agan Holding B.V. against the European Parliament and
the Council of the European Union

(Case T-46/02)

(2002/C 144/97)

(Language of the case: English)

(Case T-57/02)

(2002/C 144/98)

(Language of the case: English)

An action against the European Parliament and the Council of
the European Union was brought before the Court of First
Instance of the European Communities on 26 February 2002
by Finchimica, S.p.A. and I.Pi.Ci. — Industria Prodotti Chimici,
S.p.A., represented by Mr Koen Van Maldegem and Mr Claudio
Mereu of McKenna & Cuneo LLP, Brussels (Belgium).

The applicant claims that the Court should:

— partially annul Decision no. 2455/2001/EC of the Euro-
pean Parliament and of the Council of 20 November
2001 establishing the list of priority substances in the
field of water policy and amending Directive 2000/60/
EC (1), so as to remove trifluralin from the measure;

— order the defendants to pay all costs and expenses in

these proceedings.

Pleas in law and main arguments

An action against the European Parliament and the Council of
the European Union was brought before the Court of First
Instance of the European Communities on 27 February 2002
by Makhteshim-Agan Holding B.V., represented by Mr Philippe
Logelain, Mr Koen Van Maldegem and Mr Claudio Mereu of
McKenna & Cuneo, LLP, Brussels (Belgium).

The applicant claims that the Court should:

— order the partial annulment of Decision no. 2455/2001/
EC of the European Parliament and of the Council of
20 November 2001 establishing the list of priority
substances and priority hazardous substances in the field
of water policy and amending Directive 2000/60/EC, so
as to remove the applicant’s substances — Atrazine,
Chlorpyrifos, Diuron, Endosulfan,
Isoproturon (IPU),
Simazine and Trifluralin — from the measure;

The applicants
seek the partial annulment of Decision
no. 2455/2001/EC which includes the applicants’ plant protec-

— order the defendants to pay all costs and expenses in

these proceedings.

C 144/48

EN

Official Journal of the European Communities

15.6.2002

Pleas in law and main arguments

The applicant in this case produces pesticides (plant protection
products). The applicant contests the inclusion of certain of its
products in the list of priority substances in the field of water
policy. This list is established by the defendants in execution
of Directive 2000/60/EC (1). The products listed are considered
to present a risk to or via the aquatic environment and
their emissions must be reduced. Furthermore, the contested
decision indicates some of the applicant’s products as priority
substances ’under review’, which will lead, according to the
applicant, to a classification as priority hazardous substances.
These substances pose a higher risk for the aquatic environ-
ment and their emissions must be eliminated.

In support of its application, the applicant claims that the
defendants violated the procedural requirements of Directive
2000/60/EC. Article 16 (2) point (a) of this Directive provides
that plant protection products are prioritised by a risk
assessment procedure. The Defendants used however a simpli-
fied procedure called ’combined monitoring-based and model-
ling-based priority setting’. According to the applicants, the
defendants had no jurisdiction to use this simplified procedure
currently instead of the risk-based procedure laid down in
Article 16 (2) point (a). According to the applicant, the
conditions laid down in Article 16 of Directive 2000/60/EC
for the use of a simplified procedure are not met. The applicant
further points out
its plant
protection products under Directive 91/414/EEC (2) are still
continuing. Therefore, the defendants acted ultra vires by not
respecting the procedural and methodological requirements of
the basic Directive 2000/60.

the risk assessments of

that

According to the applicant, the defendants further violated
Articles 174, 175 and 176 of the EC Treaty by ignoring
available scientific and technical data. The contested measure
also violates Article 2 of the EC Treaty. According to the
applicant, the measure distorts competition since it does not
affect other competing plant protection products.

The applicant submits also that there has been a violation of
fundamental principles of Community law. The applicant
submits that the defendants have violated Directive 2000/60
and therefore have infringed a superior law. The defendants
also violated the more specific Directive 91/414/EEC, accord-
ing to which some of the applicant’s products are authorised
for use. The contested measure also violates the principle of
legal certainty and legitimate expectation since it frustrated the
applicant’s expectations that its products would be assessed in
accordance with the procedure under Directive 91/414/EEC
which is still current. The applicant further claims a violation
of the principle of equal treatment, since the procedure used
for the establishment of the contested measure has led to a
result contrary to that reached by the procedure under
Directive 91/414/EEC. The contested measure would, finally,
infringe the principle of proportionality.

(1) Directive 2000/60/EC of the European Parliament and of the
Council of 23 October 2000 establishing a framework for
Community action in the field of water policy (OJ L 327,
22.12.2000 P. 1).

(2) Council Directive 91/414/EEC of 15 July 1991 concerning the
placing of plant protection products on the market (OJ L 230,
19.8.1991 P. 1).

The applicant further contests the creating of a list of priority
substances under review. According to the applicant this list is
in fact a list of
tentative priority hazardous substances.
According to the applicant there is no legal basis to establish
such a list. There is also no reasoning for the selection of these
substances as priority substances under review.

Action brought on 28 February 2002 by Archer Daniels
Midland Company against the Commission of the Euro-
pean Communities

(Case T-59/02)

(2002/C 144/99)

(Language of the case: English)

The applicant further submits that the contested decision is in
conflict with the more specific Council Directive 91/414/EEC
on plant protection products. Therefore the defendants violate
the principle lex specialis derogat lex generalis. This Directive
imposes a specific risk assessment for plant protection prod-
ucts. According to the applicant, the result of this specific
procedure should have been awaited before the classification
of its products was undertaken.

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 28 February 2002 by Archer
Daniels Midland Company, represented by Ms Lynda Martin
Alegi, Mr Bill Batchelor, Ms Marta Garcia and Mr Carl Otto
Lenz of Baker & McKenzie, London (United Kingdom).