Case T-45/02: Action brought on 26 February 2002 by DOW AgroSciences B.V. and DOW AgroSciences Ltd. 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 production, dangerous substance, health risk, infringement of EU law, pharmaceutical product, restriction on competition, water pollution

C 144/46

EN

Official Journal of the European Communities

15.6.2002

Action brought on 26 February 2002 by DOW Agro-
Sciences B.V. and DOW AgroSciences Ltd. against the
European Parliament and the Council of the European
Union

newly created sub-category of priority substances, allegedly
‘under review’, which might be reclassified as ‘priority hazard-
ous substances’ in twelve months’ time, the contested measure
would also create the legal conditions for the phasing-out and
ultimate ban of the said substances.

(Case T-45/02)

(2002/C 144/96)

(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 DOW AgroSciences B.V. and DOW AgroSciences Ltd.,
represented by Mr Koen Van Maldegem and Mr Claudio Mereu
of McKenna & Cuneo LLP, Brussels (Belgium).

The applicant claims that the Court should:

— declare the present application admissible and well-

founded;

— 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 in the field of water policy and amending
Directive 2000/60/EC, so as to remove chlorpyrifos and
trifluralin from the measure;

— order the defendants to pay all costs and expenses in

these proceedings.

Pleas in law and main arguments

The applicants in the prsent case seek the partial annulment of
Decision 2455/2001 (1), mentioned above, in as much as it
lists as ‘priority substances’ two of their plant protection
product active substances, chlorpyrifos and trifluralin, using a
procedure other than the one based on the risk assessment
results of Council Directive 91/414/EEC concerning the pla-
cing on the market of plant protection products (2) (the Plant
Protection Products Directive — PPPD), as it should be
provided in Article 16(2) point (a) of Directive 2000/60/EC of
23 October 2000, establishing a framework for Community
action in the field of water policy (3) (the Water Framework
Directive — WFD), which the contested measure purports to
implement.

The contested measure would restrict the marketing and use
of the applicants’ chlorpyrifos and trifluralin-based agricultural
products. Moreover, by placing these two substances in a

The applicants submit that the inclusion of chlorpyrifos and
trifluralin in the list of priority substances is illegal for the
following reasons:

— the defendants improperly used the simplified (fast-track)
procedure of Article 16(2), second paragraph, of the
WFD, instead of basing the inclusion on the final PPPD
risk assessment results, as required by Article 16(2)
point (a). Furthermore, the defendants listed chlorpyrifos
and trifluralin on the basis of a summary and expedited
‘hazard assessment’, rather than on the basis of aquatic
toxicity and exposure data and a completed PPPD ‘risk
assessment’, as required by Article 16(2) point (a) of the
WFD.

— By circumventing Article 16(2) point (a) of the WFD, the
defendants disregarded the hierarchy among sources of
Community law (principle of lex superior).

— By including chlorpyrifos and trifluralin in Annex X of
the WFD, the contested measure also places the WFD in
conflict with the more specific and therefore prevailing
PPPD (principle of lex specialis).

— By ignoring available scientific and technical data in their
expedited and summary hazard assessment, and by
imposing a maximum environmental standard for the
the defendants violated
two substances in question,
Articles 174, 175 and 176 of the Treaty.

— By restricting and potentially banning chlorpyrifos and
trifluralin through the contested measure and thereby
placing them at a competitive disadvantage with compet-
ing substances, the defendants distorted competition, in
violation of Article 2 of the Treaty.

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.